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TMI Blog2013 (4) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation. Revenue file an appeal. Held that – None appeared on behalf of assessee. After interpretation of notification we confirm the demand against the appellant. However, the same is required to be re-quantified after extending the benefit of Modvat credit. The benefit of cum-duty price is also to be extended and demand is required to be re-calculated. Appeal is disposed of accordingly”. The department chose to issue show cause notice on 15-4-2003 by invoking the extended period of limitation and demanded duty for the period from June, 1998 to March, 2000. We find that the findings recorded by first appellate authority as regards limitation are uncontroverted. Accordingly, we find that the impugned order is liable to be upheld as it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th interest and also imposed penalties. 3. The respondent-assessee preferred an appeal before the first appellate authority contesting the issue in merit as well as limitation. The first appellate authority after following the principles of natural justice allowed the appeal filed by the respondent-assessee and set aside the Order-in-Original on merits as well as limitation. The Revenue has appealed against the order. 4. The learned SDR while arguing the case of the Revenue would submit that the issue to be decided in this case is whether the material cleared by the assessee during the period from 26-6-1998 to 27-3-2000, M/s. Tipco Industries Ltd. was eligible to avail exemption under Notification No. 5/98-C.E., dated 2-6-1998 as amende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection filed by the assessee being in support of the impugned order is disposed summarily. 6. Considered the submission made in detail by the learned SDR and on perusal of the records, we find that the issue in dispute is relating to manufacture of Tipwood Pallets and Fire Boxes and claiming the benefit under Notification No. 5/98-C.E. as amended from time to time, in the same factory premises, where there is also another company in the same name viz. Tipco Industries Ltd. which availed benefit of Modvat credit and discharged duty liability. We find that on merits, the judgment and order of this Bench in the case of M/s. Poonam Plastic Industries will apply, which we reproduce : Ld. Advocate appearing for the appellant fairly concedes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allets and Fire Box Division) in order to avail the legal benefit of Notification No. 5/98 approached the Central Excise Authority for procuring the fresh Registration No., which was issued/granted to them after due verification of facts by the local Central Excise Authority. Accordingly they filed 173B declaration claiming the benefit of exemption Notification No. 5/98 with the declaration thereon for non availment of modvat credit within the factory as well as in all the monthly returns submitted to the Department. Thus I find that their mala fides were beyond doubt as there was no any type of suppression of facts or wilful misstatement on the part of the Appellants in procuring the central excise registration in order to avail the benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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