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TMI Blog2018 (12) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 Brief facts are that the appellants are holders of Central Excise Registration and are engaged in the manufacture of Pre-stressed Concrete Pipes (PSC pipes), Pre-stressed Concrete Cylinder Pipes (PCC pipes) and MS Specials falling under Chapter Sub-heading Nos. 6807.90, 7305.90 and 7307.00 respectively of the Central Excise Tariff Act, 1985. They availed the benefit of exemption from payment of duty on clearance of PCC pipes to be used in water supply projects as per Notification No. 03/2004-CE dated 08.01.2004 as amended by Notification No. 6/2002 dated 01.03.2002. 2.2 Based on intelligence, the Officers of the Directorate General of Central Excise Intelligence (DGCEI), Regional Unit, Madurai visited the appellant's unit on 21.02.2004 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee/appellant while Ld. DC (AR) Ms. T. Usha Devi represented the Department/respondent. 4.1 During the course of hearing, Ld. Advocate for the appellant submitted that present issue is threefold, which is tabulated as under : Issue/ Sl. No. Issue in dispute Amount of duty (in Rs.) I Denial of CENVAT Credit availed on MS Sheets used exclusively in the manufacture of exempted PCC pipes 7,87,638/- II Duty on MS Specials/Flanges and Tees cleared as pipes falling under Chapter Heading 7305 on non-payment of duty. (the Department has alleged that the same are pipe fittings falling under Chapter Heading 7307) 1,84,850/- III Short-paid duty on the ground that the appellant had cleared a dutiable final product upon payment as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the amount so paid by the appellant as per Rule 6 ought to be adjusted against the CENVAT Credit denied. He therefore contended that on these grounds, the appellant was not liable to pay any further amount and thus the demand does not survive. 4.2.2 Ld. Advocate further contended that no penalty is imposable in this regard as there is no suppression on the part of the appellants. The appellant reversed an amount equivalent to 8% of the value of the final product under bona fide belief in compliance with the provisions under Rule 6(3)(b) of the CCR. He also relied on the case of Continental Joint Venture Foundation Vs. C.C.E. - 2007 (216) E.L.T. 177 (S.C.) to contend that the onus is on the Department to establish any act of suppressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when there is no finding, the imposition of penalty or invocation of extended period is unjustified. 5. Per contra, Ld. AR supported the findings of the authorities below. She argued that even with regard to the Issues II & III, the appellant had suppressed facts and thus the invocation of extended period as per the proviso to Section 11A(1) of the Act is justified. 6. We have heard the rival contentions, perused the documents placed on record and have also gone through the decisions referred to during the course of arguments. 7.1 With regard to Issue No. I above, we find that the only prayer of the appellant is to be granted the benefit of adjustment of the amount reversed by them. From a perusal of the Order in the case of M/s. PSL Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put used in the manufacture of pipes. Thus, it cannot be said that they had suppressed any facts with intent to evade payment of duty. Further, in respect of the credit availed on HR Coils, they have reversed 5% credit which has been disclosed to the Department in their ER-1 returns. 9. We find that there is no positive evidence to show suppression of facts with intention to evade payment of duty attracting the ingredients for invocation of extended period. In such event, the demand for the extended period with respect to the issues which are not contested on merits and stated in the table in para 3.1, requires to be set aside as being time barred, which we hereby do. 10. We make it clear that the appellant is liable to pay the duty dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to the penalty on these counts in the Order-in-Original or the impugned Order. We also find that there is no positive evidence to indicate suppression of facts with intention to evade payment of duty and thus the ingredients for invocation of extended period are not present in the case on hand. We are therefore of the view that the penalties imposed on these issues are unsustainable for which reason we set aside the same. 9. To sum up : (i) Demand of Rs. 7,87,638/- with respect to Issue No. I to be adjusted with the amount already paid by the appellants. Issue remanded to the adjudicating authority for the limited purpose of quantification alone. (ii) Demands of Rs. 1,84,850/- and Rs. 1,184/- with respect to Issue Nos. II & III respec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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