TMI Blog2000 (5) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that interest under Section 11AB of Central Excise and shall be recoverable from the appellants. 2. The facts of the case briefly stated are that the appellants are engaged in the manufacture of ABS Polymers and Synthetic Rubber. For that purpose they are availing Modvat credit after filing the declaration under Rule 57G. In the declaration the appellant declared Paper reinforced bags with liner classifiable under Chapter sub-heading 3923.90 as packing material. The Department alleged that the bags in fact were HDPE bags coated with paper which was specifically excluded for purpose of Modvat credit as per explanation to Rule 57A of the Central Excise Rules, 1944. A SCN was issued to the assessee asking them to explain as to why the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same as the one given in the duty paying documents i.e. G.P. 1. He submitted that duty paying documents are not prepared by the appellants but are prepared by the manufacturers. He submitted that the description of the goods given in the declaration conformed to the description given in the G.P. 1s and therefore, there can be no suppression whatsoever or mis-statement. Ld. Counsel submitted that similar issue came up before the West Regional Bench of this Tribunal in the case of National Organic Chemical Inds. Ltd. v. CCE, Mumbai-III reported in 1999 (112) E.L.T. 638 in which the Tribunal observed - The submissions made by both the sides have been considered and it is seen that the appellants are only the user of the bags in question w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant therein while continuing to avail Modvat on HDPE sacks even after amendment dated 17-9-90 to Rule 57A also at the same time disclosed it in their monthly returns. The Tribunal observed that this shows that they had continued to indicate factual position to the department every month. Therefore, the Tribunal held no suppression of facts or mis-statement could be alleged as it was for the officers concerned to have noticed the important fact. In this case the declaration of the appellant was as paper bags or paper reinforced bags and there is a statement of the supplier also during the cross-examination before the Dy. Commissioner that the bags are known in the market as such and like in the Tribunal decision supra, the appellants herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in the case of Fertilizers Chemicals Travancore Ltd. v. CCE, Cochin reported in 1999 (35) RLT 400 in which this Tribunal had before it for consideration Multi layer bags having HDPE woven fabric laminated with brown kraft paper held as other than plastic woven bags covered by exclusion clause of the Explanation to the Rule 57A and has even on merits the appellants have a goods case ld. Counsel therefore, submitted that having regard to the above decision of this Tribunal in the case of National Organic Chemical Inds. Ltd., the demand is time barred. 5. He submitted that penalty under Section 11AC is not imposable inasmuch as this case pertains to the period May, 1990 to Jan., 1993 and that statutory penalty under Section 11AC came o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r laminated with any other material woven from the strips/tapes of plastics . We find that the appellants had been declaring the item as paper reinforced bags with liner prior to 17-9-1990 as also after 17-9-1990 this description of the goods continued to be shown in the duty paying documents namely the gate passes. We find that the appellants were not the manufacturer of the bags and since in the market, the bags were traded as paper reinforced bags with liner, therefore, the declaration was strictly in accordance with the description of the goods given in the duty paying documents. Further classification of the goods was being claimed under Chapter sub-heading 3923.90, we also note that the duty paying documents were being submitted alo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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