TMI Blog2019 (2) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... fit of doubt must go in favour of the Revenue and against the assessee in view of the law laid down by the constitutional bench by the Hon ble Apex Court. [2018 (7) TMI 1826 - SUPREME COURT OF INDIA] - Hence on merits, we find that the assessee is not entitled to the notification. Time Limitation - Held that:- The assessee have not failed in his duties in maintaining the records as required. The trade notice issued by the Commissioner does not mandate the assessee maintain batch wise records. They also produced the details of the records maintained by them - the extended period of limitation cannot be invoked. The demand of duty and interest within the normal period is confirmed and the demand for the extended period is set aside - the penalty imposed under Section 11AC is set aside - appeal allowed in part. - E/1077/2010 - FINAL ORDER No. A/30170/2019 - Dated:- 7-2-2019 - Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) AND Mr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Shri Bipin Verma, Advocate for the Appellant. Shri Arun Kumar, Joint Commissioner (AR) for the Respondent. ORDER This appeal is filed against Order-in-Original No. 01/2010 CE-Hyd-III-Adjn. Commr. da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used subject to the following condition: 3. If the manufacturer maintains proper account in such form and in such manner as the Commissioner of Central Excise having jurisdiction may specify in this behalf, for receipt and use of fly-ash or phospho-gypsum or both, in the manufacture of all goods falling under Chapter 68 of the First Schedule and files a monthly return in the form and manner, as may be specified by such Commissioner of Central Excise, with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, having jurisdiction. 6. The dispute in this case whether the fly ash used in the manufacture of Flex-O-Board (by the sister unit of the appellant) should also be reckoned or only the fly ash used in the manufacture of Aerocon panels should be considered for determining the eligibility of exemption. It is the case of the Revenue that the fly ash used in the manufacture of Aerocon sheets only can be considered while, it is the case of the appellant that the fly ash used in manufacture of their inputs viz., flexo boards should also be reckoned to determine the eligibility of the notification. It is the submission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be used within the factory of manufacture of final products. The fly ash contained in the inputs namely FOB sheets which they procure should also be reckoned. If such a view is taken they are clearly covered by exemption notification and therefore the demand does not sustain. He relies on the case of Eternit Everest Ltd., Vs. CCE, Indore [2002 (150) ELT 1151 (Tri. Delhi)] in which, it was held that the actual weight of fly ash contained in the final products should be considered for the purpose of claiming benefit of Notification No. 79/1993-CE. He also placed reliance on the decision of Minwool Rock Fibres Ltd., [2010 (251) ELT 389 (Tri. Bang.)] wherein, it was held that the assessee is entitled to the benefit of Notification No. 03/2005 even if the material, namely blast furnace slag was not used by them in their factory as holding such a narrow interpretation of the language of the notification will defeat its purpose. He further submits that this decision of the Hon ble Tribunal was upheld by the Apex Court as reported in [2013 (288) ELT A80 (S.C)]. He further relies on the case of Tata Oil Mills Vs. Collector of CE [1989 (43) ELT 183 (S.C)] wherein, the issue was eligi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one interpretation is possible, exemption notification, being an exception to the general rule must be strictly construed against the assessee. In case of any doubt, the benefit of doubt should go to the Revenue as has been held by the Hon be Apex Court of the constitutional bench judgment in the case of Dilip Kumar Co Others [Civil Appeal No. 3327/2007 dated 30.07.2018]. He further argues that the extended period of limitation has been correctly invoked and the penalties have been correctly imposed. Therefore, the appeal may be dismissed. 11. We have considered the arguments on both sides and perused the records. The simple point to be decided is whether the benefit of the exemption notifications should be extended in cases where the fly ash used by the appellant in manufacture of the final product less than 25% but the fly ash contained in the inputs which have been used together with the fly ash used by the appellant together exceeds 25%. In the case of Tata Oil Mills Co. Ltd., (supra) wherein, exemption to soap was on use of rice bran oil in its manufacture, the Hon ble Apex Court extended the benefit where rice bran fatty acid produced in outside factory from rice bran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucts 25% must be fly ash. It does not indicate this 25% will also include any fly ash that might have been used in the course of manufacture of the inputs by the suppliers of the assessee. It also does not indicate, on the other hand, that the fly ash must be used in the manufacture of final products itself. Therefore, two views are possible in interpreting this notification: a) that the 25% of fly ash must be used in the manufacture of final products without any reference to the composition of other inputs. b) that the 25% includes any fly ash which may have been used in the manufacture of the inputs themselves. The Department took the first view and the assessee argues the second. This is a matter of doubt and the benefit of doubt must go in favour of the Revenue and against the assessee in view of the law laid down by the constitutional bench by the Hon ble Apex Court. Hence on merits, we find that the assessee is not entitled to the notification. 13. On the question of limitation, we have gone through the show cause notice and the impugned order and do not find that the assessee failed in his duties in maintaining the records as required. The trade notice issued by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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