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2012 (9) TMI 871 - CESTAT BANGALOREDuty demand - Whether, for the period from April 1995 to March 1999, they are liable to pay duty of Rs.31,25,625/- on aluminium scrap which was generated during the process of manufacture of their final product and subsequently used by M/s. Bharath Foundry and Engineering Works (BFEW for short) in the manufacture of ingots in the assessee’s factory - Held that:- billets/ingots were cleared on payment of duty and, if that be so, the input viz., aluminium scrap generated in the course of manufacture of final products in the factory was not chargeable to duty of excise by virtue of Notification No.67/95-CE dated 16.3.95. In this context, it is pertinent to note that the appellant had filed a classification list in respect of aluminium scrap classifying it under sub-heading 7602.00 both for home consumption and for captive consumption, a fact clearly acknowledged in the Commissioner’s order. That classification list also claimed the benefit of the above notification. appellant has also made out a formidable case against the demand of duty on the ground of limitation. The impugned demand is for the period from April 1995 to March 1999 and the same was raised in show-cause notice issued on 26.4.2000. The show-cause notice invoked the proviso to subsection (1) of Section 11A of the Central Excise Act but did not allege fraud, collusion or suppression of facts and the like. The notice alleged that certain provisions of the Central Excise Rules were contravened by the assessee, but even in this context, no intent to evade payment of duty was attributed to the assessee. In other words, the show-cause notice did not allege any of the ingredients of the proviso to Section 11A(1) of the Act. It appears, the department could not allege anything of the above sort against the assessee who was forthright in declaring aluminium scrap as one of the products in the classification list effective from 16.3.1995 and claiming the benefit of Notification No.67/95-CE in respect of captive consumption of the scrap - Decided in favour of assessee.
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