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TMI Blog2019 (3) TMI 1498X X X X Extracts X X X X X X X X Extracts X X X X ..... e exemption. In the circumstances, employee of the appellant cannot then be saddled with such charge and penalty imposed under Rule 26 ibid - From the records, it is not forth coming that any appeal was preferred by the department against the said OIA. This being so, subsequent show cause notices proposing similar denial of SSI exemption should have been issued for the normal period of one year instead of invoking extended period of limitation as has been done in this case. It follows that there cannot also be any ingredients present for imposition of penalty under Section 11AC. The impugned demand per se cannot then be sustained, on the grounds of limitation, and will require to be set aside - appeal allowed - decided in favor of appellant. - E/179/2012 & E/180/2012 - FINAL ORDER No. 40597-40598 / 2019 - Dated:- 26-3-2019 - Ms. Sulekha Beevi, C.S., Member (Judicial) and Shri Madhu Mohan Damodhar, Member (Technical) Shri Rahavan Ramabhadran, Advocate For the Appellant Shri K. Veerabhadra Reddy, ADC (AR) For the Respondent ORDER The facts of the case are that appellants are manufacturers of cakes and food items and were clearing the same to various airlines. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) vide order dt. 01.12.2011 reduced the penalty on Dole to ₹ 10,000/- however upheld the remaining portion of the order of original authority. Hence these appeals. 3. Today when the matter came up for hearing, on behalf of the appellant Shri Raghavan Ramabhadran made oral and written submissions which can be broadly summarized as under : (i) It is not disputed that cakes and pastries were dutiable during the period of dispute. (ii) However, show cause notice has also included cost of bought out items like water bottles etc. The appellant supplied to the airlines not just cakes and pastries but also a number of items including bought out items packed together. Hence they had attained the nature of goods put up in sets; that they required to be classified by Rule 3(d) of the General Rules for the interpretation of the First Schedule to the Central Excise Act. As per the said rule, the goods inter alia, put up in sets shall be classified as if they concerned of the materials or component which gives them their essential character, in so far as this criterion is applicable. In the goods put up in sets and supplied to airlines consisting mostly of fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought for the first time at the Tribunal stage and that they have not made the same either before the adjudicating authority or before the Commissioner (Appeals). (v) Ld. Advocate drew our attention to another letter dt. 12.5.2003 of page 42 of the appeal book where it was once again reiterated that appellants did not use any brand name, trademark or logo either on their product or the packing container in which the product is sold to airlines and once again requested for grant of exemption from payment of excise duty as the removals were well within the basic exemption limit. It appears that in response, the department issued a show cause notice dt.30.06.2003 proposing vacation of the protest lodged by the appellants in payment of duty. A corrigendum was also issued on 04.08.2003 proposing to deny the benefit of exemption available under Notification No.8/2002-CE dt. 28.02.2002 and 8/2003-CE dt.28.02.2003. (vi) In adjudication, the adjudicating authority vide an order dt. 31.10.2003 copy of which is placed in page 49 of the appeal book has disallowed the benefit of exemption claim under the Notification No.8/2002 and 8/2003- for the financial years 2002-03 2003-04 and vac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the circumstances, we are afraid that this argument does not hold water. 4.5 However, coming to the contention of limitation, we find merit in the argument of Ld. Advocate. A number of related proceedings had earlier been initiated against the appellant, including one of denial of SSI exemption Notification No.8/2002-CE and 8/2003-CE. SCN has proposed penalty on him on the ground of non payment of central excise duty was within his knowledge . However, we find that appellants were continuously reiterating with the department, at least from 2002, that they were eligible to claim small scale exemption. In the circumstances, employee of the appellant cannot then be saddled with such charge and penalty imposed under Rule 26 ibid. The appellants in their letters dt. 24.12.2002 and 12.05.2003 and also in subsequent communications, had consistently claimed that they were eligible to avail exemption. Even in response to the present SCN dt. 17.12.2008 appellants vide their letter dt. 30.07.2009 had once again contended that they had been consistently of the opinion that they were eligible to avail SSI exemption and hence were not paying duty on the excisable goods Cakes and Pastri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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