TMI Blog2011 (9) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod is not invocable the show-cause notice is barred by limitation, therefore impugned order is set aside - Decided in favour of assessee. - E/1109/04 - - - Dated:- 8-9-2011 - Mr. Ashok Jindal, Mr. Sahab Singh, JJ. Shri Ramesh Patil, Authorised Representative for the appellant Shri Y.K. Agarwal, SDR for the respondent Per: Mr. Ashok Jindal, Member (Judicial) Appellant has filed this appeal against the impugned order upholding the demand of duty, interest and penalty under Section 11AC of the Central Excise Act. 2. The facts of the case are that appellant have effected supply of paint and thinner without payment of duty during the period November 1997 to January 2000 claiming exemption under Notification 64/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n board Indian naval ship and be exempted from excise duty under Notification 64/95-CE dated 16.3.1995 along with certificate issued by Indian navy and after filing the declaration the appellant cleared the goods without payment of duty claiming exemption under Notification 64/95 dated 16.3.1995 during the period November 1997 to January 2000. As the appellant were not having any malafide intention to evade payment of excise duty (through misdeclaration as alleged against the appellant) the extended period is not invocable. Therefore impugned order is to be set aside. 5. On the other hand, Shri Y.K. Agarwal, Ld. SDR submitted that as the appellant have admittedly filed wrong declaration, therefore the extended period of limitation is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any of the provisions of this Act or the rules made thereunder, a Central Excise officer may, within one year from the relevant date, serve notice on the person chargeable with the duty which ahs not been levied or paid or which has been short levied or short paid or to whom the refund has erroneously been made, requiring him to show-cause why he should not pay the amount specified in the notice: Provided that whether any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) the assessee has claimed the brand name is not owned by anybody else. In fact, it was on record that it was a registered trade mark. Therefore it cannot be relied upon. In the case of BPL Ltd. (supra) the bench held that the assessee is a technical people they should mention the correct use of the product. In the case of Maharaja Agarsen Iron Foundry (supra) it was found that the exemption is not available to the assessee. 12. In this case, the appellant are the manufacturer of paint etc. and if any goods are exclusively for use on board or as stored for consumption on board are entitled for exemption from excise duty under Notification 64/95 dated 16.3.95. The appellant have filed the said declaration on the basis of a certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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