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TMI Blog2016 (12) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... extended period demand as made out by the lower Authorities is not legally tenable. It was observed by the lower Authorities that the ER-1 return was not complete. It is not recorded which aspect of the return is incomplete. It is sufficient to note here that the appellants indicated description of the product, clearances without payment of duty and notification number for such clearances. In such situation, allegation of fraud, suppression etc. cannot be sustained against the appellant for confirmed demand for extended period. Regarding the appellants duty liability, we note that the duty for the normal period of demand is liable to be paid by the appellant as they have not paid any duty while claiming based exemption for clearance in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant were ₹ 1,06,82,112/-, ₹ 1,44,80,620/- and ₹ 88,20,464/- respectively. In the year 2002-2003 they claimed exemption under Notification 6/2002-CE dated 01/3/2002 which provided for nil rate of duty for the impugned goods upto clearance of 3,500 M.T. in a year. The said notification was amended on 01/3/2003 where 8% duty was introduced vide Notification 6/2003-CE dated 01/3/2003. The appellants continued to clear goods without payment of duty during the period March 2003. The duty involved on such clearance was ₹ 78,793/-. 2. During 2003-2004, they opted to operate under general SSI exemption Notification 8/2003-CE dated 01/03/2003 and there is no dispute of duty liability for this year. For the year 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as per the un-amended notification. For the next year they have opted for a general SSI exemption under Notification No. 8/2003-CE and there is no dispute for this period. Substantial demand relates to 2004-2005 and 2005-2006. It is the claim of the appellant that they continued to avail quantity based exemption under Notification No. 6/2003-CE under the mistaken belief that the same is available for the goods for clearance without payment of duty. 3. The learned Counsel emphasized that they have been filing regularly the monthly ER returns indicating clearances with full exemption under Notification 6/2003-CE. The Department did not point out any error. It is his submission that the error has happened on both the sides, namely, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amendments in various entries of Notification 6/2002-CE. We are not able to understand how the said notification which did not mention either the product name or the quantum of clearances eligible for exemption could be bonafidely mis-construed for availing full exemption. As such, we find no merit in the claim for bonafide understanding or mistake on the part of the appellant while switching over from general small scale exemption to quantity based exemption during the year 2004-2005 and 2005-2006. 6. However, having noted the above facts, it is also to be seen that the appellants have been filing due ER-1 returns on regular basis specifically indicating Notification 6/2003-CE and also showing clearances without payment of duty on suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) held that benefit of SSI exemption even if not specifically claimed by the assessee has to be granted, if they are otherwise entitled to the same. Reference can also be made to the decision of Larger Bench of the Tribunal in Ankit Packaging Ltd. vs. CCE, Hyderabad reported in 2004 (165) E.L.T. 228 (Tri. LB). We find that an exemption from duty, if otherwise available on fulfillment of all conditions cannot be denied on the ground that another exemption was wrongly availed by the appellant. In the facts and circumstances of the case, we find the duty liability of the appellant has to be reworked for the normal period after extending the concession under Notification 8/2003-CE. In view of the above findings, we hold that penalty imposed und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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