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TMI Blog2019 (7) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... under their invoice No. 267060 dated 29 March 2011. These clearances have also been affected at the nil rate of duty availing the benefit of N/N. 214/86-CE. As per the scheme things under the N/N. 214/86-CE, the job worker is entitled to clear the goods without payment of duty to the principal manufacturer and it is the responsibilities of the principal manufacturer to pay duty on such goods, and, therefore, no wrong has been done by the appellant upto this particular point. It is a matter of record that appellant have not availed the benefit of N/N. 10/97-CE, which was availed by the principal manufacturer and, therefore, the demand of duty for violation of the terms of N/N. 10/97-CE cannot be raised against the appellant - the deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment that the appellant has willfully suppressed the vital facts by not showing the clearance of such goods by availing the benefit of Notification No. 10/97-CE and thereby they have resorted to willful mis-declaration, and suppression with an intention to evade central excise duty. On these premises, the Department had issued a show cause notice to the appellant demanding central excise duty amounting to ₹ 23,07,440/- under extended time proviso under Section 11A (4) of the Central Excise Act, 1944, the interest provision as per Section 11AA and penal provision as per Section 11AC of the Central Excise Act, 1944 have also been invoked. The matter got adjudicated vide order No. V(H) Adj./CE-86/Alw/192/2015 dated 6 June 2017 whereund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein it has been indicated that two numbers of HTC wagons have been manufactured by the appellant for M/s TWL on labour charges basis. The invoice also shows only the labour charges and fabrication charges towards M/s TWL. M/s TWL vide his invoice No. ED/10-11/HF001200 dated 29 March 2011 have supplied the Hood Transfer Carrier (HTC) wagons in two numbers further to M/s Defence Research and Development Organization, Ministry of Defence, Bugdewadi, Pune. Thus, the learned Advocate has explained that the appellant have manufactured HTC wagons on job work basis availing the benefit Notification No. 214/86-CE and they have cleared the wagons manufactured on job work basis without payment of duty as they were entitled vide Notification No.214/8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Commissioner of Central Excise reported in 1989 (44) E.L.T. 353 (Tri.), which has also been upheld by Hon ble Supreme Court vide its decision reported in 1991 (55) E.L.T. A33 (S.C.) , wherein it has been held that the concept of suppression amounts to that which one is legally to state that one intentionally or deliberately or consciously does not state in other words, the term suppression includes a mental element to deliberately omit to make certain things ; (ii) Continental Foundation Jt. Venture vs. Commissioner of Central Excise, Chandigarh reported in 2007 (216) E.L.T. 177 (S.C.) , wherein Hon ble Supreme Court has comprehensively discussed the concept of the suppression. 4. I have also heard learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant have rightly availed the benefit of Notification No. 214/86-CE and there has not been any violation of the terms of the notification No. 214/86-CE on behalf of the appellant. It is a matter of record that appellant have not availed the benefit of Notification No.10/97-CE, which was availed by the principal manufacturer and, therefore, the demand of duty for violation of the terms of Notification No. 10/97-CE cannot be raised against the appellant and, therefore, I feel that the demand of central excise duty is without any merit and, therefore, legally not sustainable. While holding the above view, I also take the shelter of the decision of this Tribunal in the case of Kanohar Electricals Ltd. vs. Commissioner of Central Excise, Meerut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem. There is no force in their submission that the duty should have been demanded from job worker who has actually manufactured the goods since they are working under Notification No. 214/86-C.E. and are governed by the conditions mentioned in the Notification. Once they remove the goods for home consumption after receiving the same from job worker, the liability to pay duty of excise is on them. Consequently the jurisdiction to demand duty by issuing show cause notice is to be exercised by the Proper Officer who is having the jurisdiction over the factory of the Appellants. The decision in the case of Span Heat Transfer Equipment Mfrs. P. Ltd. is not applicable as the facts are entirely different. The issue involved therein was whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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