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TMI Blog2013 (8) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the cookers are not sold without the individual cartons as per the requirement and business practice of the appellant. Only for the sake of convenience, the cookers are removed from the factory in bulk packing along with the extra (single) cartons to its depot or C&F agent, which is not on sale. Thereafter, the cookers are repacked in the single cartons at the depot of the appellant from where they are dispatched to the whole sellers or distributors on sale. This practice was regularly being followed for several years and the same was in the knowledge of the department. Further, the packing material being extra-single cartons etc. were duly accounted for in the Books of Account as well as their value etc. duly reflected in the RG-23 register as well as in the monthly returns filed with the department. Further, case of the appellant is that all sales are made from deport or C.F.A. only, which are located at various places through out India and there is no factory-gate sale. This practice is followed to safeguard the product form damage in transport and also to ensure that the customers get the product in a presentable form, as well as the carton being not in the mutilated form e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly stated that the definition under Rule 57AA and other rule nowhere places any such restrictions. All that has to be considered is whether inputs were used in or in relation to the manufacture of final products. The moot question in present case is whether the master cartons which are cleared from the factory alongwith the goods but are used for packing at the depot can be considered to be used in or in relation to the manufacture of final products. In this regard I note that the depot has been defined as place of removal only with effect from 13.5.2003 and prior to that the place of removal was factory only. Since prior to 13.5.2003 the goods were packed in primary cartons and transported in that condition only, the master cartons cannot said to be used in or in relation to manufacture of the final product when the same were used at depots only. Accordingly, I hold that the credit in respect of these cartons will not be available prior to 13.5.2003. 6. Subsequent to 13.5.2003 since the depot has been defined as a place of removal and goods for the first time are sold from depot as there is no other sale at the factory gate, the master cartons have to be conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances, there is no suppression of facts or any manipulation in the records, neither any willful omission or commission on the part of the appellant nor any collusion etc. attracting extended period of limitation. Further, in view of proper records maintained and timely return filed, and the practice carried on over several years, there is no case made out for suppression of facts or records. Further, in all the earlier Revenue audits, more particularly CERA and EA, 2000, this practice was accepted and never objected. Further, from reading of both the show-cause notices dated 8.2.2005 and 7.11.2005, no allegation is made out, making out the case of intention of evasion of duty or suppression of facts or collusion etc. Hence, in the case of intention of view of evasion of duty or suppression of facts or collusion etc. Hence, in view of ruling of he Hon'ble Apex Court in the case of Kaur & Singh Vs. Commissioner of Central Excise, New Delhi - 1997 (94) ELT 389 (SC), no case of extended period is made out under the provision of the Act. 6. The adjudicating authority vide its order-in-Original No. 74075/2011-12/BC/21/M-III dated 29.7.2011, held that extended period of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts first came to the notice of the department only during the course of audit. 7.1 Being aggrieved the appellant has carried the matter before this Tribunal. 8. Thus the contention of the appellant is that the Commissioner (Appeals) has erred in holding that the records maintained in RG-23 (P-II) as well s RG-23A P-I & II and filing of proper returns and maintenance of proper records were not sufficient. 9. Further, it was urged that there is no case of any clandestine removal on the part of the appellant as in the case of Quality Exports- 2001 (135) ELT 430 relied upon by the Commissioner (Appeals) as well as in the case of Faridabad Metal Udyog- 2001 (138) ELT 1021, which was the case of mis-declaration. Further, the reliance placed by the Commissioner (Appeals) in the case of Nitin Patki- 2011 (273) ELT 104, the order was set aside by the hon'ble Bombay High Court. Further, in view of the facts and circumstances, extended period of limitation is not invocable and reliance was placed on the ruling of the apex court in the case of the facts and circumstances, extended period of limitation is not invocable and reliance was placed on the ruling of the apex court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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