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2016 (6) TMI 507 - AT - Central ExciseBenefit of notification no. 64/95-CE dated 16.03.1995 denied - exemption to specified goods from payment of duty - duty demand raised along with penalty - Held that:- We have seen the correspondence by the appellant dated 02.12.2003 addressed to the Range Superintendent intimating that they would be availing benefit of notification no. 64/95-CE. It is also not disputed that the benefit was being claimed while producing the certificate from the requisite authority which were being placed before the authorities. It is also further seen that the earlier order of the Tribunal was in favour of the assessee. As such it can be reasonably concluded that the issue was debatable and arguable and might have led the assessee to a bonafide belief. Otherwise also we note that the appellant had stated the entire facts to the Revenue and as such reasoning of the original adjudicating authority that the appellant knew that the benefit was not available to them and has wrongly claimed the same, cannot be appreciated. In view of the above we hold that the first show cause notice issued on 03.04.07 for the period June 2004-Feb 2006 is barred by limitation. The confirmation of the demand in respect of the said show cause notice along with imposition of penalty is set aside. As regards the second show cause notice, the Ld. Advocate agrees that the same is within limitation period and the issue on merits stands decided against them in the referred decision of Tribunal in the case of Ordnance Factory (2011 (12) TMI 401 - CESTAT, MUMBAI ). However, as we have already held that there is no malafide on the part of the appellant, we find no reason to impose penalty upon them. Accordingly, demand raised by the second show cause notice stands confirmed along with confirmation of interest, but penalty is set aside. - Decided in favour of assesee
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