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TMI Blog2016 (9) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to Notification No. 43/97-ST dated 5/11/1997 amended retrospectively. Plain and clear meaning of Notification No. 43/97-ST as amended retrospectively has already been made by this Bench in the case of Pataka Industries (P) Ltd. Vs. Commr. of Central Excise, Bolpur (2008 (9) TMI 155 - CESTAT, KOLKAT). No other contrary judgment has been placed on record by the appellant with respect to Notification No. 43/97-ST dated 5/11/1997. Respectfully following the ratio laid down by this Bench, there is no reason to allow the appeal of the appellant on merits. So far as the issue of time bar is concerned, it is observed that this issue was never raised before the adjudicating authority or the first appellate authority, therefore, the same cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India-1995 (77) E.L.T. 32 (S.C.) iii) Indian Lead Private Ltd. Vs. Union of India-1988 (38) E.L.T. 23 (Bom.) iv) Collector of Central Excise Vs. Himalayan Co.Op. Milk Product Union Ltd. 2000 (122) E.L.T. 327 (S.C.) 3. It is also the case of the appellant that demand is time barred as no suppression or willful misstatement has been alleged in the show cause notice. Ld. Advocate made the Bench go through para 8 of Order-in-Appeal dated 8/10/12 to argue that first appellate authority has clearly held that penalties under Section 76, 77 and 78 of the Finance Act, 1994 are not imposable as there is no omission or commission on the part of the appellant with intent to evade payment of duty. That once Section 78 has been held to be inapplicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellants claim that they are covered by exemption Notification No. 43/97-ST, dated 5-11-1997 as retrospectively amended through Twelfth Schedule to the Finance Act, 2003 w.e.f. 16-11-1997. It is their case that they fall in the category of factory other than a factory registered as Small Scale Industries with the State Government. However, we find that the lower appellate Authority has duly considered the claim of the Appellants. He has come to the conclusion that though they fall in the exclusion Clause under SI. No. (i) of Notification No. 43/97-S.T., dated 5-11-1997, they get covered under Sl.No. (ii) thereof being a company other than a trading company and registered as a private limited company. We find that for the purpose of Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From the above ratio laid down by the Supreme Court, a notification has to be interpreted by the plain and clear meaning throwing out of a notification. None of the case laws relied upon by the appellant is with respect to Notification No. 43/97-ST dated 5/11/1997 amended retrospectively. Plain and clear meaning of Notification No. 43/97-ST as amended retrospectively has already been made by this Bench in the case of Pataka Industries (P) Ltd. Vs. Commr. of Central Excise, Bolpur (cited supra). No other contrary judgment has been placed on record by the appellant with respect to Notification No. 43/97-ST dated 5/11/1997. Respectfully following the ratio laid down by this Bench, there is no reason to allow the appeal of the appellant on mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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