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2013 (1) TMI 249 - AT - Central ExciseManufacture – Clearance to DTA - Appellant are a 100% EOU engaged in manufacture of 100% cotton yarn - Under Chapter heading 52.05 - Soft waste arises at carding and combing stage, which was being cleared by the appellant to DTA without payment of duty - Whether DTA clearances of "soft cotton waste" by 100% EOU would attract duty in terms of proviso to Section 3 (1) of Central Excise Act, 1944 – read-with exemption Notification No. 2/95-CE – Held that:- The obtaining soft cotton waste, in course of carding and combing of ginned cotton does not amount to manufacture and no new product with distinct name, usages and character emerges more so when the Department has not led any evidence in this regard. In the decision in case of AHMEDABAD ELECTRICITY CO. LTD. (2003 (10) TMI 47 - SUPREME COURT OF INDIA) that the onus to show that particular goods on which excise duty is sought to be levied have gone through the process of manufacture in India is on the Revenue. In favour of assessee Extended period of limitation – Held that:- In Show Cause Notices department had sought clarification as to whether DTA clearances of soft cotton waste would attract duty. It is absolutely clear that the Department was aware of the fact about emergence of soft cotton waste in course of manufacture of cotton yarn from ginned cotton and clearance of soft cotton waste into DTA. Department with changes in tariff structure of Chapter 52 by introducing a new heading 5202 for cotton waste w.e.f. 16/3/95, the position with regard to duty on DTA clearance of soft cotton waste changed, the department should have advised the appellant accordingly and even if it is held that w.e.f. 16/3/95 the DTA clearance of soft cotton waste attracted duty, the non-payment of duty cannot be attributed to fraud, willful misstatement, suppression of facts on contravention of provision of Rules with intent to evade the payment of duty. We, therefore, hold that in respect of both the show cause notices only normal limitation period would be available. In favour of assessee
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