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2019 (2) TMI 438 - AT - Central ExciseBenefit of exemption - fly ash - actual user condition - Scope of N/N. 06/2002-CE dated 01.03.2002 and N/N. 05/2006 dated 01.03.2006 - Whether the fly ash used in the manufacture of Flex-O-Board (by the sister unit of the appellant) should also be reckoned or only the fly ash used in the manufacture of Aerocon panels should be considered for determining the eligibility of exemption? Held that:- a plain reading of the exemption notification shows that of the various materials used in the manufacture of final products 25% must be fly ash. It does not indicate this 25% will also include any fly ash that might have been used in the course of manufacture of the inputs by the suppliers of the assessee. It also does not indicate, on the other hand, that the fly ash must be used in the manufacture of final products itself. Therefore, two views are possible in interpreting this notification The Department took the first view and the assessee argues the second. This is a matter of doubt and the benefit of doubt must go in favour of the Revenue and against the assessee in view of the law laid down by the constitutional bench by the Hon’ble Apex Court. [2018 (7) TMI 1826 - SUPREME COURT OF INDIA] - Hence on merits, we find that the assessee is not entitled to the notification. Time Limitation - Held that:- The assessee have not failed in his duties in maintaining the records as required. The trade notice issued by the Commissioner does not mandate the assessee maintain batch wise records. They also produced the details of the records maintained by them - the extended period of limitation cannot be invoked. The demand of duty and interest within the normal period is confirmed and the demand for the extended period is set aside - the penalty imposed under Section 11AC is set aside - appeal allowed in part.
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