TMI Blog2013 (9) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible for exemption under another notification which was predecessor to Notification No. 6/2002 should be considered as a favorable point for not invoking extended period - mere interpretation of a notification in a manner beneficial to the assessee cannot be equated with the case of clandestine removal and no penalty can be imposed - appellant had no objection and had made submission that even if it was held that under Notification No. 6/2002, benefit was not available, the same can be claimed under other notifications - assessee was entitled to interpret the notification in a manner beneficial to them - it was also to be noted that in the case the goods were manufactured mainly for Public Sector units who had also given certificates stating that these items are part of Aero planes and Helicopters. This has been the viewed adversely. - Appeal No. E/671 & 672 of 2010 - - - Dated:- 28-6-2012 - Mr. M.V. Ravindran and Mr. B.S.V. Murthy, JJ. For the Appellant: Shri P.M. Dave, Advocate For the Respondent: Shri S.K. Mall, AR JUDGEMENT Per: Mr. B.S.V. Murthy; The subject matter before us is whether demand for the period beyond normal period can be confirmed or n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly follow the observations made by the Commissioner as conveyed under letter dated 31.12.2004. 7. 28.02.2005- On a Writ Petition being SCA No. 2639/2005 filed by the appellant against the above actions, the Hon ble Gujarat High Court directed the Commissioner to grant opportunity of hearing to the appellant. 8. 11.03.2005-The Commissioner passed OIO No. 130/Commr/2005 and held that benefit of none of the three Notifications was admissible and hence the appellant should pay duties immediately for past clearances (page 78). 9. 16.03.2005- The Commissioner himself issued a Show Cause Notice demanding duty for past clearances made during 1.4.2000 to 7.12.2004 alleging intentional and willful mis-declaration and suppression of facts (page 99). 10. 09.05.2005-The Hon ble Gujarat High Court passed an order on a subsequent petition being SCA No. 6524/2005 directing the appellant to file appeal before the Tribunal and also allowing clearance of goods upon furnishing a bond for the duty liability for future clearances until the Tribunal decided the appeal. 11.20.04.2007,01.04.2008 21.01.2009-Three further Show Cause Notices for April, 2006 to February, 2007, March, 2007 to Decem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 to 2004 i.e. much after the refund and lot of things had changed; and therefore extended period of five years was correctly invoked. The penalty of amount equal to duty i.e. Rs.55,03,843/- on the company and personal penalty of Rs.1,00,000/- on the Managing Director are also imposed. 15.31.03.2010-The appellant has deposited duty and interest for the normal period of limitation for all the four Show Cause Notices (i.e. the period covered under 2nd, 3rd and 4th Show Cause Notices and also a part of the period of the 1st Show Cause Notice) for the goods cleared under Notification No. 6/2002 along with 25% of duty amount towards penalty. Propositions :- 1. All the reasons given by the Commissioner upholding extended period of limitation are incorrect. The wires and cables were not wrongly classified by the appellant as parts of aero-planes and Helicopters (for Notification No.6/2002) because the customers had placed orders with reference to the part number of aero-planes or Helicopters, and wires and cables manufactured for air-born applications in accordance with the specific requirements of these buyers were not usable elsewhere and hence they were shown as parts of aer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that there was enough scope for confusion and bonafide impression on the appellant s part about the admissibility of Notification No.6/2002. In past exemption of similar Notification (i.e. 52/94) was allowed, the Commissioner vide OIO No.130/Commr/2005 held that none of the three Notifications was available to the appellant, the Hon ble Technical Member held that benefit of 2 out of 3 Notifications was admissible whereas the Hon ble Judicial Member has expressed reservations even about denial of Notification No.6/2002; and thus all these facts show that there was a lot of confusion and also scope for bonafide impression on the appellants part about the admissibility of benefit of all the three Notifications and therefore, extended period of limitation was wrongly invoked. (Padmini Products 1989 (43) ELT 195 (SC), Chemphar Drugs Liniments 1989 (40) ELT 276 (SC) and Continental Foundation Jt. Venture 2007 (216) ELT 177 (SC. 5. The litigation about the appellant s refund claim for same type of benefit which resulted in the Assistant Commissioner s order ultimately allowing refund in February, 1997 meant that the Excise authorities knew about the nature of the goods, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember Judicial did not agree that exemption under Notification No. 6/2002 may be available but observed that appellant had no objection and had made submission that even if it is held that under Notification No. 6/2002, benefit was not available, the same can be claimed under other notifications. It is his submission that, if one of the Hon'ble Members also felt that she could not agree with the view taken by the Hon'ble Member Technical, it would support the case of appellants. We find that all these submissions are valid and find ourselves in agreement with the submissions. 4. Learned AR has relied upon the decision of the Tribunal in the case of Incab Industries 2001 (137) ELT 574 (Tri. Kol.) wherein it was held that wires and cables cannot be considered as parts of battle tanks. Similarly, in the case of United cable Industries -- 2000 (119) ELT 668 (Tribunal) relied upon by the learned AR, it was held that insulated cables cannot be considered as parts of Wind Mills. These cases would show that the dispute has arisen not only in the case of wires and cables under Notification No. 6/2002 but also in respect of some other notifications. As already observed by us that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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