TMI Blog2013 (12) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... ake out a case and what is cleared by them is not a part of scanner and thus is not eligible for the benefit of exemption notification – Decided against Assessee. Invocation of Extended Period of Limitation – Held that:- It is a settled principle that merely because an assesee chooses an interpretation beneficial to him, there can be an allegation of suppression or misdeclaration - Appellant cannot be found fault with for coming up with an interpretation and availing the benefit which was not available to them - the order of the Commissioner limiting the demand to the normal period and not imposing the penalty was an order which rendered justice to the appellant/assessee without being unfair to the Revenue – Decided against Revenue. - C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the normal period in respect of both the show-cause notices issued and covered by the adjudication order have been confirmed. No penalty was imposed by the Commissioner. The assessee is in appeal against this decision. 2. Revenue is also in appeal on the ground that the extended period had been correctly invoked in the show-cause notice and penalty was also proposed under Section 11AC of Central Excise Act 1944. The Commissioner erred in dropping the demand relating to extended period and not imposing penalty. 3. Heard both the sides and went through the records and considered the submissions made. 4. The assessee is engaged in manufacture of what they call as sub-assemblies of scanners of two categories namely LA 100 PRO and LA 100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s examined and it was held that the 'probes' being necessary to use Ultra-Sound Scanner, the benefit of notification was available. It is his submission that probe being a necessary part would mean that the scanner cannot work without probe and therefore the sub-assembly manufactured by the appellant also has to be considered as a part. Overall the submission of the appellant/assessee is that an Ultra-Sound Scanner which consists of the scanner assembly manufactured by the appellants, probe and software CD sourced for this assembly together makes complete scanner and the scanner, the probe and the software have to be considered as components/parts of the system. 6. Learned AR submitted that the scanner without the probe also is called sca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though the learned counsel vehemently argued and tried to explain that the scanner and probe have to be considered as parts of the whole, in view of the manner we have understood the item in question, in our view the scanner has to be considered as the main item and the 'probe', needless to say, is a part of the scanner and a necessary part and this was the decision in the earlier cases also cited by the learned counsel. Therefore we find that the appellant/assessee has not been able to make out a case that what is cleared by them is a part of scanner and therefore is eligible for the benefit of exemption notification. Therefore the appeal filed by the appellant/assessee as regards merits of the issue, has to be rejected. 8. Revenue is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was an intention to evade duty and there was misdeclaration, fraud or collusion. Merely challenging the approach of the assessee may not be sufficient. In our view the situation is such that appellants need not have resorted to wrongly availing exemption notification in the circumstances explained by the learned counsel and not contradicted by the Revenue. In fact it should have been appreciated if at least after the order was passed, a verification or actual investigation was done to find out whether the claim of the appellant that CENVAT credit availed was more than the duty payable was correct or not. Even this has not been done. Moreover we also have to take note of the fact that in this case there is no clear admission by any of the em ..... X X X X Extracts X X X X X X X X Extracts X X X X
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