9911796707
TMI Blog2001 (10) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the inputs used in the manufacture of such Plastic Tanks. However, no duty was paid by them on the Plastic Tanks of a capacity of less than 300 litres, inasmuch as the same were exempted in terms of Notification No. 15/94-C.E., dated 1-3-94. One of the conditions of the said Notification was that Modvat credit has not been availed in respect of the inputs used in the manufacture of the said goods. Accordingly, the appellant firm was reversing back the Modvat credit initially availed on the inputs used in the manufacture of the said exempted final product. 1.1. Subsequently, the appellants were issued a show cause notice on 2-6-99 alleging that during the period 10-5-94 to 18-4-96, they had manufactured Plastic Moulding Powder f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inasmuch as the granules have to be necessarily first grounded to manufacture their final product. 1.5. The Commissioner while adjudicating the case did not accept the appellants contention and relied upon Chapter Note 6 of Chapter 39, which is to the effect that change of one primary form (plastic granules) to another primary form (Plastic Moulding Powder) in respect of the goods falling under Heading Nos. 39.01 to 39.14, would amount to manufacture. He also rejected the appellants contention as regards the marketability of the production and the limitation, and confirmed the duty of Rs. 28,86,429.00 (Rupees twenty-eight lakh eighty six thousand four hundred twenty-nine) along with the imposition of personal penalty of an equivalent am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hine Section has been clearly shown in the said blue-print. As such, it cannot be said that the appellants had suppressed any fact from the Revenue with an intent to evade payment of duty. He also submitted that the duty was not being paid because the appellants were under a bona fide belief that Plastic Moulding Powder coming into existence at the intermediate stage and being a non-marketable commodity, is not excisable. Referring to the various decisions, he prays for setting aside the penalty on the point of limitation. 2.2. Shri Chattopadhyay, learned Consultant also argues that in case of confirmation of the demand on the Plastic Moulding Powder, the appellants become entitled to the Modvat Credit of Duty paid on the granules which, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court that there has to be some positive act on the part of the assessee with an intention to evade payment of duty which would attract the longer period of limitation. In the instant case, we notice that the appellants have clearly intimated the Assistant Commissioner that their starting raw material is granule. It does not require a great deal of knowledge that granules have to be pulverized for further manufacture of the final product. The appellants have also shown the Pulverizing Machine Section in their blue-print submitted to the Revenue. As such, it cannot be said that there was an active role attributable to the appellants to suppress this material fact of emergence of the PMP at the intermediate stage so as to evade payment of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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