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TMI Blog2016 (12) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... dient the classification of the goods has to be preferred as per the name of product known in the market. in the present case irrespective of the specification of the product, it is marketed under the description of lightweight concrete building blocks and buyer is also purchasing the product knowing consciously that it is lightweight concrete building blocks - product represent to description used for the marketing of the goods should be accepted and need not to go to the IS specification particularly for the reason that the entry provided in the exemption notification does not carry any IS specifications. Therefore we hold that appellant is entitle for the exemption notification no. 10/2002-CE dated 1-3-2002(sr. No. 23) Period of limitation - Held that: - The issue is of strict interpretation of the entry given in the notification. In such a case it is settled law that in case of issue involved is of interpretation of law, malafide intention or suppression of fact cannot be alleged therefore the extended period of demand cannot be invoked as provided under proviso to Section 11A of Central Excise Act, 1944. In the present case, the period involved is August, 2002 to February, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip firm and partners of the appellant partnership firm under Rule, 26. Consequently corrigendum to the above show cause notice dated 11-8-2005 was issued incorporating the clarification issued by Superintending Engineer, TAD cell, CPWD, New Delhi. The adjudicating authority on the basis of the contention made in the show cause notice confirmed the demand of duty 21,86,2841 alongwith interest and equal amount of penalty under Section 11AC and penalty of ₹ 2,50,000/- under Rule 26 was also imposed on the partner. Being aggrieved by the Order-in-Original, appellants filed appeals before the Commissioner(Appeals), who vide impugned Order-in-Appeal No. BR/79&80/Th-II/06 dated 30-3-2006 rejected the appeal and upheld the Order-in-Original. Being aggrieved by the said impugned order appellant M/s. Ramdev Blocks and its partner Shri. Mahendra Sangoi filed these appeals bearing No. E/2192-2193/06 respectively. 3. Since the appellant during investigation deposited an amount of ₹ 19,12,486/-, refund claim was also filed for the said amount which was rejected by the Original authority as premature on the ground that aforesaid case was booked against the appellant. Challenging th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance should be accepted. In support, he placed reliance on the following judgments: (a) Commr. Of C. Ex. New Delhi Vs. Cannaught Plaza Restaurant(P) Ltd[2012(286) ELT 321(SC)]. (b) Collector of Central Excise Vs. Kohinoor Rubber Mills[1993(67)ELT 816(Tri.)] upheld by the Hon'ble Supreme Court as reported[1997(92) ELT 36(S.C.)] He further submits that demand is for the period August, 2001 to February, 2003 whereas show cause notice issed on 15-12-2004 and corrigendum was issued on 11-8-2005. Thus, extended period was invoked. He submits that issue involved is only interpretation of entry provided in the notification. As regard the description the appellant have declared the description in their sale invoice and the same description is provided on periodical monthly returns which the appellant have been submitting to the department regularly thus description of the goods and availment of the notification was well-known to the department, therefore there was no suppression of fact on the part of the appellant, the demand is clearly time bar. In support, he placed reliance on the following judgments: (a) Densons Pultretaknik Vs. Commissioner of Central Excise[2003(155) ELT 211(SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel on perusal of the sample notification, we find IS specifications are mentioned in the exemption entry. The said sample exemption notification are produced below: (a) Notification No. 111/88-CE dated 01-Mar-1988 Exemption to certain specified goods of Chapters 82 and 84 In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts goods of the description specified in column (3) of the Table hereto annexed and falling under Chapter or heading Nos. of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as are specified in the corresponding entry in column (2) of the said Table, from the whole of the duty of excise leviable thereon which is specified in the said Schedule. THE TABLE S. No. Chapter or Heading No. Description of goods (1) (2) (3) 02 82 Beaters conforming to the Indian Standard Specification IS : 273-1983 (b) Notification No. 37/2004-C.E., dated 4-8-2004 Petrol - Motor spirit intended for use in ethanol blended petrol - Exemption In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... description in the invoices. As per the description of goods shown in invoice, it is admitted fact that appellant is marketing their goods under the description of light weight concrete building blocks; this shows that in the trade appellant as well as buyer identifies the product as lightweight concrete building blocks. The issue that in absence of any specification the product classification should be done on the basis of commercial parlance test, the Hon'ble Courts have given various decision which are reproduced below: Cannaught Plaza Restaurant(supra) 19. A classic example on the concept of common parlance is the decision of the Exchequer Court of Canada in The King v. Planter Nut and Chocolate Company Ltd. - (1951) C.L.R. (Ex. Court) 122. The question involved in the said decision was whether salted peanuts and cashew nuts could be considered to be "fruit" or "vegetable" within the meaning of the Excise Tax Act. Cameron J., delivering the judgment, posed the question as follows : "...would a householder when asked to bring home fruit or vegetables for the evening meal bring home salted peanuts, cashew or nuts of any sort? The answer is obviously 'no'." Applying the test, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same description in their ER-1 return, therefore there is no suppression of fact on the part of the appellant. The issue is of strict interpretation of the entry given in the notification. In such a case it is settled law that in case of issue involved is of interpretation of law, malafide intention or suppression of fact cannot be alleged therefore the extended period of demand cannot be invoked as provided under proviso to Section 11A of Central Excise Act, 1944. In the present case, the period involved is August, 2002 to February, 2003 whereas show cause notice for the demand during such period was issued on 15-12-2004 i.e. after lapse of almost one year and ten months. Moreover, corrigendum to show cause notice was also issued on 11-8-2005. In this fact, we are of the considered view that the demand is clearly time bar as extended period could not have been invoked. As regard the appeals of the partner of the appellant firm, since the main appeal of the appellant is being allowed, no question arise for personal penalty on the partner of the firm. As regard the appeal No. E/3003/05 on the issue of refund of the duty paid by the appellant, during the investigation of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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