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TMI Blog2014 (2) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... lant and the utensils are leviable to duty, the circles would become exempt on account of captively consumption Notification No. 67/95. The duty already paid on the same would be adjusted against the duty required to be paid by the appellant - issue involved is complex interpretation of law and no mala fide can be attributed to the appellant to impose penalty upon them. We accordingly, set aside the penalty. For the same reason, demand beyond the normal period of limitation would also not to be sustainable - matter is being remanded to the original adjudicating authority for de novo decision for the normal period of limitation - Decided in favour of assessee. - E/5140 & 5200/2004-EX(DB) - Final Order Nos. 57010-57011/2013-EX(BR)(PB) - Dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no dispute during the period prior to 1-3-2002. 4. With effect from 1-3-2002, duty was imposed upon the utensils at the rate of 4% by Notification No. 10/2002, dated 1-3-2002. With the imposition of duty on utensils, the appellant opted for small scale exemption Notification No. 8/2002-C.E., dated 1-3-2002 and started clearing their utensils without payment of duty. In terms of said notification, assessee has to pay duty on the captively consumed aluminium circles under compounded levy scheme. The entire dispute revolves around the availability or otherwise of the said Notification No. 8/2002. 5. As per para 2 of said notification, there are certain conditions which are required to be satisfied before the claim of exemption. Sub-para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 crores aggregate value. However, it is seen that as aluminium circles are not one of the specified items in annexure of the notification, having been specifically excluded from the benefit of exemption, their value of clearance are required to be taken into consideration. 7. In view of the foregoing discussion, the entire dispute boils down to find duty the total value of clearance of aluminium circles which were either cleared by the appellant as such or used by the appellant captively, for further manufacture of utensils. It is seen that while arriving at a finding that total value of clearance exceeded Rs. 3 crores clearance, the Revenue has taken the TOTAL value of clearance of the appellants factory. As per the appellants they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that duty was being paid on the circles which are captively consumed as they were clearing the utensils free of duty. If the lower authorities comes to a finding that benefit of notification is not available to the appellant and the utensils are leviable to duty, the circles would become exempt on account of captively consumption Notification No. 67/95. The duty already paid on the same would be adjusted against the duty required to be paid by the appellant. 9. As regards penalty, we are of the view that issue involved is complex interpretation of law and no mala fide can be attributed to the appellant to impose penalty upon them. We accordingly, set aside the penalty. For the same reason, demand beyond the normal period of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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