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TMI Blog2011 (2) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... es to quantify the same. As regards penalty it is to be set-aside laying down that it is a bonafide dispute of interpretation. Inasmuch as the demand is barred by limitation, penalty under Section 11AC is not warranted. Thus set-aside the penalty imposed on the appellants. - Appeal No. E/1558 of 2010 - - - Dated:- 21-2-2011 - Mrs. Archana Wadhwa, Mr. B.S.V. Murthy, JJ. Appellant : Shri S.J. Vyas, Advocate Respondent : Shri R.S. Srova, JDR Per : Mrs. Archana Wadhwa; The prayer in the COD application is to condone the delay of three months and five days in filing the present appeal. Such delay stands attributed to the lack of coordination between their Mumbai officer and the factory at Vapi. Learned DR appearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that such samples have to be assessed on prorata basis of the cost of the regular packs. The later decision of the Hon'ble Supreme Court in the case of Medley Pharmaceuticals Limited vs. CCE, Daman- 2011 (263) ELT 641 (SC) has also upheld the Revenue s stand. As such we are of the view that the appellants do not have any case on merits. 5. As regards limitation, learned advocate submits that the show cause notice, for the period April 2005 to 31 Dec 2007 was issued on 02.4.2007, i.e. beyond the normal period of limitation. He submits that as the issue was the subject matter of various decisions of the Tribunal, some of which were also in favour of the assessee and the matter was ultimately referred to the Larger Bench and as the Large ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circular issued by the Board is binding on the assessees as well as on the Tribunal. Therefore, it cannot be said since Board issued a circular the assessee is not entitled to entertain an opinion which is different from the circular issued. Further the very fact that Board s circular issued in 2002 was modified in 2005 shows and also the fact that both the circulars were issued after introduction of new Rules shows that different interpretations were possible. When different interpretations were possible, extended period cannot be invoked and penalty cannot be levied. Therefore, we allow the appeal as far as the demand beyond the period of one year and we also set aside the penalty imposed on the appellants. The matter is remanded to Origi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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