TMI Blog2018 (8) TMI 1442X X X X Extracts X X X X X X X X Extracts X X X X ..... d held that the duty demanded for the period 6 months prior to the date of show cause notice needs to be confirmed because show cause notice itself does not indicate the exact amount of duty for the period - the assessee’s appeal also lacks merit and demand for the period of 6 months from the date of issue of show cause notice is liable to be upheld. Penalty - Rule 9(2) r/w Rule 173 of the erstwhile Central Excise Rules, 1944 - Held that:- The penalty needs to be set aside as the entire issue is regarding classification of the trusses fabricated and is a settled law that penalty need not be imposed, if the issue is of classification - penalty set aside. Appeal allowed in part. - Appeal No: E/18 & 61/2008 - A/30786-30787/2018 - Dated: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue is regarding classification of trusses which are used for construction of shed at site. It is her submission that the assessee herein used to construct these trusses at site for Visakhapatnam Steel Plant and the Larger Bench of the Tribunal in the case of Mahindra Mahindra [2005 (190) ELT 301] has held that such activity of fabrication of trusses at the site will amount to manufacture and has to be classified under chapter heading No.13.08 under Central Excise Tarrif. It is her submission that classification issue is now settled and the appellant having not disclosed such fabrication activity to the authorities for the period 01.03.1986 to 31.08.1989, show cause notice was issued by invoking extended period is correct and the adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it may be inferred that the matter was in knowledge of department. That being the case suppression cannot be alleged. Relying upon the decision of Supreme Court in the cases of M/s Nizam Sugars Ltd [2006 (19) ELT 465 (SC)], Indore Bottling Co., [2003 (151) ELT 11 (SC)] the demand has to be restricted to 6 months as per the rule position prevailing at the material time. 5. It can be seen from the above reproduced para that adjudicating authority has considered the fact that the same issue was subject matter of dispute between the Revenue and the assessee and was settled in favour of the assessee as being non-excisable goods. If that be so, in our view the adjudicating authority was correct in dropping the demands raised beyond the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty for the period. In our view, the assessee s appeal also lacks merit and demand for the period of 6 months from the date of issue of show cause notice is liable to be upheld and we do so. 9. As regards penalty imposed, we find that the penalty has been imposed by the adjudicating authority under Rule 9(2) r/w Rule 173 of the erstwhile Central Excise Rules, 1944. In our view this penalty needs to be set aside as the entire issue is regarding classification of the trusses fabricated and is a settled law that penalty need not be imposed, if the issue is of classification. In the case in hand the issue is similar and for the extended period, we have dropped proceedings. The penalty imposed on the assessee is set aside. 10. Assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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