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TMI Blog2018 (7) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... LTD. VERSUS C.C.E. RAIPUR [2016 (5) TMI 609 - CESTAT NEW DELHI]. No duty is demandable under Section 11A on the assessee or interest under section 11AB and no penalty is imposable under section 11 AC - appeal allowed - decided in favor of appellant. - Appeal No. E/676/2007 - Final Order No. A/30647/2018 - Dated:- 28-6-2018 - Hon ble Mr. P. Venkata Subba Rao, Member ( Technical ) Shri M.S. Sivaraman, Consultant for the Appellant Shri Dass Thavanam, Superintendent /AR for the Respondent ORDER [ Order Per : Mr. P.V. Subba Rao ] 1. This appeal has been filed by the appellant against Order-in-Appeal No. 92/2006(V-I)CE, dated 08.08.2007. 2. Heard both sides and perused the records. The facts of the case in brief are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsuccessfully. Thereafter, they issued a show cause notice dated 31.03.2004 demanding the duty under section 11A, invoking extended period of demand along with interest and Section 11 AB of the Central Excise Act 1944; the Show Cause Notice also proposed penalty under section 11 AC for violation of the conditions of the permission. After following due process of law, Ld. Asst. Commissioner has confirmed the demand along with interest and imposed penalty. Aggrieved, appellant approached the Commissioner (Appeals) who upheld the impugned order and rejected the appeal, observing as follows: The facts of the case are not in dispute. The appellants have sent some material for job work and in accordance to the conditions of the Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or less shrinkage than the prescribed norms of 4% or 5%. There is no allegation of clandestine removal of the goods in the show cause notice or in the Orderin- Original. It also cannot be presumed that the goods have been clandestinely removed because the losses due to shrinkage were in excess of what has been prescribed by the Ld. Asst. Commissioner. Consequently, no demand can be raised on the fabric which has shrunk; as a result, no penalty or interest can also be imposed on them. He further argued that the entire facts including the details of the goods sent and goods received were submitted to the department and hence there is no suppression of facts on behalf of the appellant. He further submits that in identical cases in the cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pealed to him to change the conditions if they were unrealistic or incorrect. Having agreed to those conditions, appellant cannot now go back on their terms and say that shrinkage is actually much higher than what has been prescribed. In view of this, the demand is under section 11A read with the proviso thereto, invoking the extended period of limitation is sustainable and so are the demands for the interest under section 11AB and penalty under section 11 AC of Central Excise Act, 1944 which are also imposable. 6. Heard both sides and examined the arguments by both sides and perused the records. The issue in brief is that the appellant had sent Polyester Texturised Yarn for processing outside their factory and brought them back under no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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