TMI Blog2008 (7) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... the charge as to willful misstatement or suppression of facts cannot be sustained. The finding of Tribunal referred to hereinbefore indicates that there was no information available on record to show that respondent assessee had made any attempt to keep away any vital information from the department. In the aforesaid set of facts and circumstances of the case, it is apparent that the impugned order of Tribunal is based on appreciation of facts and evidence on record. In light of the position of law declared subsequently no infirmity can be found in the said order. No question of law arises. - 1503 of 2007 - - - Dated:- 22-7-2008 - D.A. Mehta and H.N. Devani, JJ. [Order per : D.A. Mehta, J (Oral)]. - Appellant revenue has propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the by-products, which in turn were used for manufacturing the final products, all with the intent to avail and utilize the benefit of exemption notification to which respondent assessee, according to appellant, was not entitled. 3. The show cause notice issued by the adjudicating authority proposed confirmation of duty demanded during the period July, 1999 to September, 2003 by invoking the extended period as provided under the Proviso to Section 11A of the Central Excise Act, 1944 (the Act). After hearing respondent assessee, not only was the duty amount confirmed but penalty under Section 11AC of the Act, under Rule 173 of Central Excise Rules, 1944 etc. was also levied, and order for recovering interest under Section 11AB of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een used in the manufacture of final product disentitling respondent assessee from the benefit under the notification. 5. Respondent assessee had raised a defence explaining the entire manufacturing process, which has been summarized by the adjudicating authority in the following words : "It is submitted that even in their clients case Cupric Chloride and Aluminium Chloride (first product) is manufactured out of imported Copper/scrap and Aluminium ingots. CPC green (second product) is manufactured out of Cupric Chloride and Aluminium Chloride. Mother Liquor is then used in the manufacture Aluminium Hydroxide and Copper Sludge (third product). It is therefore submitted that imported Copper bars/scrap and Aluminium ingots are used in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 399/WZ/2005/C-1/EB, dated 9-12-2005 to point out that in similar fact situation, the Larger Bench had held that the benefit under the notification was not available to an assessee carrying on similar type of manufacturing activity. The Tribunal therefore, upheld the demand on merits in terms of provisions of Section 11A of the Act. 7. However, insofar as applicability of the extended period of limitation as stipulated by the Proviso under Section 11A of the Act is concerned, the Tribunal has recorded thus : "8. Admittedly, there were conflicting decisions and different opinions, as regards the eligibility of the assessees to Notification No. 8/97-C.E. It was in view of the said conflicts that the matter was referred to Larger Bench, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions of Tribunal till 9-12-2005 when the Larger Bench of the Tribunal decided the issue, itself would indicate that the position of law was not free from doubt and if the assessee adopted one modality for claiming exemption on the basis of decisions favouring the assessee, the charge as to willful misstatement or suppression of facts cannot be sustained. The finding of Tribunal referred to hereinbefore indicates that there was no information available on record to show that respondent assessee had made any attempt to keep away any vital information from the department. 9. In the aforesaid set of facts and circumstances of the case, it is apparent that the impugned order of Tribunal is based on appreciation of facts and evidence on re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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