TMI Blog2015 (2) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... is evident, make it clear that on and from 1.3.94, i.e., period post the order of the Deputy Commissioner of Central Excise dated 15.9.95, till the order in appeal No.37/02 dated 8.6.02, the assessee was under the bona fide impression that removal of waste and scrap does not attract duty. The Department had chosen not to issue notice pending appeal, for which failure thereof, they are not entitled to invoke the proviso to Section 11-A, as has been rightly held by the Tribunal. - Tribunal was justified in allowing the appeal on the question of limitation. There is no such finding of fact by the Commissioner (Appeals), for invoking the extended period in terms of proviso to Section 11-A of the Central Excise Act and, therefore, a question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me under private delivery challans without entering in the statutory records resulting in evasion of Central Excise duty on the plastic waste and scrap? 2. The respondent assessee who is registered under the Central Excise Act and was operating a self-promoted scheme, was visited with a show case notice, inter alia, demanding duty of ₹ 7,96,040/= payable on waste and scrap cleared during the period 6.9.95 to 6.1.97 and for other related claims like penalty, interest, etc. The Commissioner, in the adjudication proceedings, held as under :- 14. As regards the demand of ₹ 7,96,040/= raised on the ground that the assessee cleared the waste and scrap of plastic without payment of duty during the period from 06.09.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 and in this connection I rely upon the Tribunal's order in the case of Marcandy Prasad Radhakrishna Prasad (P) Ltd. (1998 (102) ELT 705) wherein it was held by the Tribunal that Section 11-AB for recovery of interest and Section 11-AC for mandatory imposition of penalty equal to 100% of duty evaded are not to be applied retrospectively since the provisions contained therein are of substantive character and not just procedural. The departmental Civil Appeal D 18869 of 1998 filed by the Commissioner of Central Excise, Calcutta against the said order of the Tribunal was dismissed by the Hon'ble Supreme Court on 25.01.99 (1999 (107) ELT 121). As regards imposition of penalty, they submitted that penalty was not imposable in the absenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn as the same were exempt from duty under the Notifications mentioned above. 4. Against the said order of the Commissioner (Appeals), the assessee went on appeal before the Tribunal. The main contention of the assessee before the adjudicating authority as well as before the Tribunal was primarily on the plea of limitation stating that for the earlier period from 1.3.94 to 30.9.94, similar claim for duty on removal of waste and scrap was made by the Deputy Commissioner, who, subsequently dropped the same vide proceedings dated 15.9.95. Therefore, the assessee was under the bona fide impression that no duty is payable on removal of waste and scrap of plastic. However, the Department, not satisfied with the order of the Deputy Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96,040/= on waste and scrap of plastics as also against the imposition of penalty and this challenge is, by and large, based on the ground of limitation. The SCN invoked the proviso to Section 11A (1) of the Central Excise Act for demanding the above duty, by alleging that waste and scrap had been removed by the assessee in contravention of the provisions of the Central Excise Act and the Rules made thereunder with intent to evade payment of duty. A similar allegation had been raised against the party in earlier SCN dated 24.10.94 issued by the department for the period 1.3.94 to 30.9.94. In adjudication of this earlier SCN, the original authority held the waste and scrap of plastics to be not excisable and, accordingly, dropped the demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) also. In the case of Bhanu IVRCL Associates (supra), this Tribunal set aside a demand of duty (which had been raised by the Department by invoking the extended period of limitation under the proviso to Section 11 A (1) of the Central Excise Act) on the ground that the assessee had acted under bona fide belief that they were eligible for the benefit of Exemption Notification. In the case of DCW Ltd. (supra) also, the plea of bona fide belief was accepted and the Revenue's appeal for invoking the extended period of limitation for demanding duty from the assessee was dismissed. 6. Following the above line of decisions, we hold that in the facts and circumstances already stated, it was not open to the department to invoke the ext ..... X X X X Extracts X X X X X X X X Extracts X X X X
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