2003 (3) TMI 577 - AT - Central Excise

Availability of benefit of exemption Notification No. 183/88-C.E. - Demand - Limitation - Suppression of facts - Appeal - New plea - Penalty

Summary

Issues:
Validity of Order-in-Appeal affirming Order-in-Original regarding exemption under Notification No. 183/88-C.E. and duty liability determination.

Analysis:
The appeal questioned the validity of the Order-in-Appeal affirming the Order-in-Original. The appellants, engaged in manufacturing Unwrought Zinc Slabs, faced duty changes due to Budgetary amendments. The issue centered on the availability of exemption under Notification No. 183/88-C.E. during a specific period. Authorities found the exemption not applicable during that time, but the appellants received a small-scale exemption up to a limit. The duty was confirmed after considering this allowance.

The Counsel argued that after the small-scale exemption, concessional duty rates and Modvat credit were applicable, not considered by the Commissioner (Appeals). However, lack of evidence on record hindered this argument. The duty liability was calculated based on clearances after allowing the small-scale exemption. The goods manufactured were not eligible for exemption under the relevant notification, as confirmed by the appellants' representative.

Regarding the limitation period, the appellants failed to inform the Department about dutiable goods clearance, leading to the invocation of the extended limitation period. The Counsel's reliance on certain cases for Modvat claim was deemed inapplicable due to the absence of a lodged claim.

The penalty imposition under Section 11AC and Rule 173Q was contested by the Counsel, citing lack of apportionment. However, the penalty was upheld due to duty non-payment and material facts suppression. The need for separate apportionment under both provisions was deemed unnecessary.

The judgment concluded by upholding the Order-in-Appeal, dismissing the appeal based on the discussed legal aspects, duty liability determination, exemption availability, limitation period, Modvat claim, and penalty imposition under Section 11AC and Rule 173Q.