2016 (6) TMI 154

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..... d that the respondents were engaged in the manufacture of Tin Containers falling under sub heading No. 7310.00. 3. If the Tin Containers produced on the Hand Operated Plants and without the aid of power, they are exempt from payment of Central Excise Duty in terms of Serial No. 176 of Notification No. 03/2001-CE dated 01/03/2001. If such Tin Containers are manufactured with the aid of power, the same are not unconditionally exempt but the benefit of small scale exemption Notification No. 08/2001-CE is required to be extended to them. 4. It is seen that the appellant were manufacturing Tin Containers with the aid of power prior to May, 2002 as also with the Hand Operated Plants. Two sets of invoices were being issued by them, one with the .....

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..... od in question and found that they were more or less the same for the period for which the appellant was not using the power motor. Based upon the said fact, proceedings were initiated against the respondent, by way of issuance of show cause notice dated 4/10/2005 for proposing confirmation of demand of duty to the extent of Rs. 10,88,000/- after extending the benefit of Small Scale Notification No. 08/2001. The said proceedings culminating into the order passed by the Original Adjudicating Authority confirming the demand along with interest and imposing penalties. 8. The said order of the Original Adjudicating Authority was challenged before Commissioner (Appeals), who set aside the same primarily on two grounds:-Firstly, that the variati .....

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..... consumption of the assessee from the electricity bills and based upon that, trying to come to the conclusion that electric motors were being used by the assessee. As rightly observed by Commissioner (Appeals) such use of electricity can be on account of several other factors and cannot have a direct connection or nexus with the use of electric motors in the assesses factory. Further, the respondents have also placed on record before the authorities below that electric motors being used by them prior to May, 2001, stands sold by them under the cover of invoices. The same were re-purchased in the December, 2002 under the cover of the invoices. Revenue has not bothered to examine the purchaser in the first case and seller in the second case s .....

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