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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 ..... es were of the view that the benefit of said Notification is available provided the assessee does not avail credit of duty paid under Rule 57A or 57B of the erstwhile Central Excise Rules, 1944 on the said products or any other products manufactured in the same factory. It was noticed by the first appellate authority that there were two registered unit situated in the same factory premises and was manufacturing finished products one of which was discharging duty liability by availing the benefit of Modvat credit, while another unit was manufacturing Tipwood Pallets for which exemption was claimed. Show cause notice was issued for demand of excise duty equal to the Modvat credit as well as payment of interest on the duty demanded and for imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow stands covered by the decision of the Co-ordinate Bench of the Tribunal in the case of M/s. N.M. Nagpal Pvt. Ltd. v. CCE, New Delhi - Final Order Nos. 732-733/06-EX., dated 9-8-2006. It is his submission that this decision was followed by the final order of this Bench in the case of M/s. Poonam Plastic Industries vide No. A/445/WZB/AHD/2009, dated 5-2-2009. On limitation it is submitted that the appellant had not informed department that they were having two separate Central Excise registration nos. without indicating that they want to avail the benefit of Notification and there is no evidence that the factory was approved by department. 5. None appeared on behalf of the appellant despite of notice. Since the issue involved is in n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tending the same treatment to the present appeal. 2. In view of the above decision, we confirm the demand against the appellant. However, the same is required to be re-quantified after extending the benefit of Modvat credit, on the basis of the documentary evidences to be produced by the appellant. The benefit of cum-duty price is also to be extended and demand is required to be re-calculated. In the facts and circumstances of the case, penalty is set aside, by following the above referred decision of the Tribunal. Appeal is disposed of accordingly". 7. In view of the abovesaid ratio, we find that on merits the assessee has no case. As regards limitation, we find that the first appellate authority while allowing appeal on the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose 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. In our view the extended period could not have been invoked as the lower authorities were aware of 173B declarations made of the intent of the respondent-assessee to avail benefit of Notification No. 5/98 in one unit and availment of Modvat credit in another unit. 9. Accordingly, we find that the impugned order is liable to be upheld as it is correct and legal on the ground of limitation hence the Revenue's appeal is rejected. (Operative portion of order pronounced in the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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