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2016 (2) TMI 248 - AT - Central ExciseSSI Exemption - Interpretation of notification 8/2002-CE dated 01/3/2002 existed prior to the Notification which came into effect on 01/3/2003 - suppression of facts - bifurcation of exempted goods to two categories - Penalty imposed - Held that:- On perusal of both notifications we find that the clause in the Notification pertaining to calculation of aggregate value in regard to exempted goods is clearly worded and does not give reason for any doubt. The condition for availing exemption is the same in both notifications i.e., the aggregate value of clearances of all excisable goods for home consumption by a manufacturer from one or more factories, or from a factory by one or more manufacturers does not exceed 300 lakhs in the preceding year. The value of exempted goods is not to be taken into account for calculating the first clearances of ₹ 100 lakhs. The appellant seems to be making an effort to mix both these conditions together and put forward a plea that there was a confusion whether exempted goods have to be included while calculating the aggregate clearances applicable for the preceding financial year. Moreover, the authorities below have observed that the appellant has bifurcated the exempted goods to two categories. Items like badam-summer sip and Thandai are seen declared in the ER-I return. Whereas certain other exempted goods like Orange Crush, Aam Pannaa, Lime Crush etc. are not declared in the ER-I returns at all. It is the case of Department that if appellants had included these exempted items in their return, then the value of total clearances would have crossed the limit of 300 lakhs and has suppressed certain exempted goods in the monthly returns. The learned counsel though confronted with this issue was not able to give a plausible explanation why the appellant chose not to declare certain exempted items in the ER-1 return, while some exempted items were being declared. We therefore have to endorse the view of the authorities below that there has been suppression of facts on the part of the appellant. This being so, though the duty and penalty was paid before the issuance of show cause notice, we are not inclined to set aside the penalty imposed. With regard to the penalty imposed on Shri M.L. Agarwal, Director, except for his statement there is no other evidence placed before us. There is no evidence that he was directly involved in keeping the accounts. We therefore set aside the penalty imposed.
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