TMI Blog2011 (6) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... the AED (T&TA) cannot be included in the cost of inputs. Moreover, the fact that the appellant have availed Cenvat credit of AED (T&TA) was known to the department and it was also known to the department that there is no AED (T&TA) on the final product, requirement of pre-deposit of duty demand, interest and penalty is, therefore, waived, stay application is allowed - E/1390/2010 - 627/2011-EX(PB) - Dated:- 8-6-2011 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri K.K. Anand, Advocate, for the Appellant. Shri N. Anand, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. - The appellants are manufacturers of grey fabrics chargeable to central excise duty. For the manufacture of grey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notice dated 20-11-2007 was issued to the appellant for - (a) recovery of allegedly short paid central excise duty amounting to Rs. 15,32,639/- under Section 11A(1) of Central Excise Act, 1944 along with interest on it at the applicable rate under Section 11AB ibid, and (b) imposition of penalty on the appellant under Rule 25(1) of the Central Excise Rules as well as under Section 11AC of the Central Excise Act, 1944. 2. The show cause notice was adjudicated by the Joint Commissioner vide Order-in-Original dated 1-4-2008 by which duty demand raised in the show cause notice was confirmed under Section 11A(1) of the Central Excise Act along with interest on it under Section 11AB. Besides this, penalty of equal amount was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant is un-utilized for the reason that there is no AED (T TA) on the final product, that in any case, the duty demand is time barred, as while the period of demand is from 1-4-2002 to 31-2-2006, the show cause notice has been issued only on 20-11-2007 and the show cause notice does not even invoke the extended period under proviso to Section 11A(1) of the Central Excise Act, 1944, that during the period of dispute, the appellant were filing ER-I Returns in which the availment of AED (T TA) had been disclosed, that the fact that there was no AED (T TA) on the final products was also known to the department, that in view of this there was no suppression of any relevant information on the part of the appellant, that the duty demand is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds. In this case while the inputs had suffered, in addition to BED and SED, the AED (T TA) also and the appellant being eligible for Cenvat credit of all these duties of excise, the same had been taken by them. However, the Cenvat credit in respect of the AED (T TA) could not be utilized for the reason that there is no AED (T TA) for the final product. According to the department, the appellant s inability to utilize the AED (T TA) Credit amounts to not taking the Credit and hence, the AED (T TA) paid on the inputs should form part of the cost of production of the final product, on the basis of which, the assessable value of the goods was being determined. We are of the prima facie view that it is difficult to agree with the contention of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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