TMI Blog2011 (12) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... and rosin is classifiable under Heading 3806.11 of the Tariff. Further it is held that the demand beyond the normal period of limitation as provided under the provisions of Section 11A of the Central Excise Act are not sustainable hence set aside. Consequently, the demand for the normal period is confirmed and the Revenue's appeal is allowed to that extent. - E/779 to 782/06, E/1530/06 - Final Order Nos. A/1020-1024/2011-WZB/C-II(EB) - Dated:- 1-12-2011 - Mr. S.S. Kang, and Mr. Sahab Singh, JJ. Appearance: Shri M.H. Patil, Advocate, for assessees at sr.no. 1 to 4 Shri S.S. Sekhon, Advocate, for assessee in appeal No. E/1530/06 Shri V.K. Singh, Additional Commissioner (AR) for Commissioner Per: S.S. Kang Common iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show cause notice mentioned at serial No.4 was adjudicated vide order dated 27.2.2005 by the Commissioner of Central Excise and the adjudicating authority confirmed the demand along with interest and also imposed penalties. Against this order, DPL and others filed appeals challenging the confirmation of demand and imposition of penalties. 5. The learned Additional Commissioner (AR) appearing on behalf of the Revenue in the appeal filed by the Revenue submitted that the adjudicating authority dropped the demand relying upon the decision of the Tribunal in the case of Gurukripa Resins Pvt. Ltd. vs. CCE, Nagpur reported in 2004 (168) ELT 277. The Tribunal in the case of Gurukripa Resins Pvt. Ltd. held that in case the water is lifted with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise, specifically mentioned that in the process of manufacture, it is noticed that water is stored in the water storage tank with the aid of power using electric pump. The Revenue also relied upon the letter dated 17.2.2004 written by the Commissioner of Central Excise to the Additional Director General of Central Excise Intelligence, where it has been specifically mentioned that the matter in respect of manufacture is not free from doubt and in this letter the Commissioner of Central Excise relied upon the Board circular dated 16.1.1978 where it has been clarified that so long as the use of power is limited to drawing water into a cooling tank, the manufacture of rosin cannot be said to be with the aid of power. The contention of DP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his fact is not disputed by DPL though DPL is disputing regarding the existence of two other electric motors. For deciding the issue involved in the present appeals, we are taking up the admitted fact that water is lifted to the water tank with the aid of power, which is further used in the manufacture of the goods in question. This issue is now settled by the Hon'ble Supreme Court in the case of Gurukripa Resins Pvt. Ltd. in favour of the Revenue. We find that the manufacturing process in respect of the same goods is before the Hon'ble Supreme Court for consideration. The Hon'ble Supreme Court held as under:- "17. Having considered the present case on touchstone of the aforenoted parameters, we are of the opinion that the activity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power and the water so lifted is further used in the manufacture of final product, in view of the decision of the Hon'ble Supreme Court which is fully applicable on the facts of the present case, we find no merit in the contention of DPL that the goods in question are manufactured without the aid of power. Hence the goods in question, i.e. turpentine oil, is classifiable under Heading 3805.11 of the Tariff and rosin is classifiable under Heading 3806.11 of the Tariff as claimed by the Revenue. 12. On the issue of limitation, we find that the first show cause notice was issued on 4.10.2004 alleging suppression with intent to evade payment of duty and there are similar allegations in the subsequent show cause notices also. 13. In this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uppressed the material facts with intent to evade payment of duty. In these circumstances, we find that the demand beyond the normal period of limitation as provided under the provisions of Section 11A of the Central Excise Act are not sustainable hence set aside. In respect of penalties also, we find that DPL disclosed their manufacturing process in detail with flowchart and nothing has been suppressed with intent to evade payment of duty. Therefore penalties on the firm and on others are also not sustainable hence set aside. Consequently, the demand for the normal period is confirmed and the Revenue's appeal is allowed to that extent and in the appeal filed by M/s. Dujodwala Products Ltd. and others the demand beyond the normal period is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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