TMI Blog2010 (2) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... also be available to the appellants to be raised before the Apex Court. For the reasons stated above, the appeal fails and is thereby dismissed. - E/1158/2005 - 108/2010-EX(PB), - Dated:- 24-2-2010 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. Shri B.L. Narasimhan, Advocate, for the Appellant. Shri Sunil Kumar, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. Heard. 2. This appeal arises from order dated 27-1-2005 passed by the Commissioner (Appeals), Central Excise, Noida. By the impugned order the appeal filed by the appellants against order passed by the Adjudicating authority has been dismissed. The Adjudicating authority by his order dated 30th June, 2004 had confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 1,87,42,200/- during the period from December, 2002 to March, 2003 should not be demanded under Section 11A of the Central Excise Act, 1944 along with interest thereon in terms of Section 11AB of the said Act and penalty under Rule 25 of the Central Excise Rules, 2002. Proceedings were contested by the appellants and the Adjudicating authority after considering the material placed on record dropped the proceedings in relation to the demand of Rs. 21,18,382/- and confirmed the demand for an amount of Rs. 8,80,370/- along with interest thereon and penalty of equal amount of duty. Appeal against the same did not yield favourable result to the appellants, except in relation to the penalty. 5. Learned Advocate appearing for the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment the appellants had claimed the benefit of exemption of payment of duty under the said notification which has been rejected by the authorities below not because of the exemption notification does not permit such benefit but only because of the decided case on such point. In this regard attention is drawn to the decision of the Commissioner (Appeals), particularly to paras 18 19 of his order. Drawing our attention to the decision in Formica India v. CCE, reported in 1995 (77) E.L.T. 511, the learned advocate submitted that mere lapse of time in clearing the liability cannot be a ground to deny the benefit of exemption once it is not in dispute that the statutory liability in relation to the duty on the input has been cleared by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Excise (Goods of Special Importance) Act, read with any notification for the time being in force or the additional duty of customs leviable under section 3 of the Customs Tariff Act, 1975, as the case may be, has been paid and no credit of the duty paid on inputs or capital goods has been taken under rule 3 or rule 11 of the CENVAT Credit Rules, 2002. 10. A perusal of the decision of the Apex Court in Formica India Division case reveals that when it is found that the assessee though were liable to pay duty on intermediate product prior to its utilization in the final product but had not paid the same, however, they had paid the same on the end product, it cannot be said that they could not ordinarily have complied with the requiremen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y thereon was paid only after the decision of the Tribunal. Being so, the fact that duty was not paid at the time of clearance of the inputs being clearly established as also the fact that one of the inputs used in the manufacture of the final product so having been cleared would certainly amount to non-compliance of the condition No. 4 of the notification. The time factor of the payment of duty cannot be said to be a mere technical matter. Condition No. 4 clearly refers to lawful clearance of duty on the inputs. 11. The decision in the matter of Ambay Cements also lend support to the contention made on behalf of the respondents. In Bombay Dyeing Mfg. Co. Ltd. case the Apex Court had clearly held that when we come to the Exemption Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner (Appeals) in order to justify the rejection of the benefit to the appellants is unwarranted as mere absence of case law cannot be a ground to reject a contention raised by the party. 13. It is not necessary to deal with the issue of non-entitlement of benefit under Notification No. 15/2002-C.E. on account of utilization of one of the inputs which has been exempt from payment of duty as the same stands settled in the earlier decision in relation to the appellants own case which is now the subject matter of challenge before the Apex Court. In any case, if the appellants challenges the present decision before the Apex Court the said issue would also be available to the appellants to be raised before the Apex Court. For the reasons s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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