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TMI Blog2019 (9) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, job worker is required to pay excise duty. Therefore the appellants have correctly entertained the bonafide belief that on the basis of various judgments that excise duty was payable by the principal supplier of the raw material. It is settled law in various judgments in the case of Marsha Pharma Pvt. Ltd [ 2009 (6) TMI 818 - CESTAT, AHMEDABAD ] which was upheld by Hon ble Gujarat High Court in case of Charak Pharma P. Ltd [ 2012 (11) TMI 475 - GUJARAT HIGH COURT ] that the demand for the extended period of limitation was not permissible when the issue was referred to Larger Bench of Tribunal - we have no hesitation in holding that since in the present case is of prior to Larger Bench decision, the matter was in favour of the assessee in many judgments and the matter was finally settled by Larger Bench. The period involved in the present case is much before the Larger Bench Decision, therefore, there is no malafide on the part of the appellant. Hence the demand for the extended period is set aside. If any demand for the normal period exists, the adjudicating authority should be recomputed - appeal allowed by way of remand. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR AND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant have not paid the duty on packaging material produced by them on job work and valuation of such job work production is also not been taken into consideration while determining the aggregate value of clearances from their factories in a financial year. There is no evidence of any statement of any person belonging to appellant s organization indicating that duty was not paid even though the appellant knew that they were required to pay excise duty on their job work production or that the supplier of raw material had informed that they were required to pay excise duty on packaging materials produced on job work because such principals were using packaging material for manufacturing of exempted goods. The impression of the job worker appellant was based on various judgments which are cited below: Aggarwal Rolling Mills 1997 (93) ELT 615 (Tribunal) Sree Rayalaseema Dutch Kassenbouw Ltd 2006 (203) ELT 248 (Tri.-Bang.) Moon Chemicals 2007 (83)RLLT 253 (CESTAT-Chennai) Salem Weld Mesh 2007 (83) RLT 568 (Cestat-Chennai) Suvikram Plastex (P) Ltd 2008 (84) RLT 605 (Tri.-Ban.) India Fabricators 2005 (191) ELT 339 (Tri.-Chennai) 3. He submits that in the above and many other cases, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that in view of above facts, the demand for the larger period of limitation and penalty needs to be set aside on all the appellants and other benefits like proper valuation of Cenvat credit in case any duty liability is confirmed may also be allowed. Subsequently vide Advocate s letter dated 12.07.2019 a copy of this Tribunal s Final order No. A/11071/2019 dated 05.07.2019 in the case of Hi scan Pvt. Ltd passed by this Tribunal was submitted and submits that the same may be considered. In the matter of appeals filed by M/s Apex (guj) Plastochem Pvt. Ltd Deepakbhai Raojibhai Patel, their Consultant Sh. K.C. Rathod adopted the submission made by Ld. Counsel Sh. P.M. Dave. Being identical issue involved. 5. On the other hand Sh. L. Patra Ld. Assistant Commissioner (AR), Sh. S.K. Shukla, Superintendent (AR) Sh. T.G. Rathod, Joint Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of impugned order. He placed reliance on the following judgments: Allied Bitumen complex (India) Pvt. Ltd 1997 (90) ELT 374 (T) Desh Rolling Mills 2000 (122) ELT 481 (T) Smithkline Beecham Asia Ltd 2004 (168) ELT 40 (T) Agrofab Machineries (India) Ltd 2017 (5) GSTL 257 (T) Thermax B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appears to be reasonable. Therefore, the malafide intention cannot be attributed to the appellant. Accordingly, the demand for the extended period does not survive. Hence, impugned order is set aside only on ground of limitation. Therefore, we do not address the issue on merit. The appeal is allowed. In the case of Rajarshi Auto Deals Pvt. Ltd (supra), the Tribunal passed the following order: 4. Heard both the sides and perused the records. We find that as regard merit of the case, as conceded by the Ld. Counsel demand for the normal period is sustained. As regard limitation, we find that the issue was not free from doubt as the same was finally decided by Larger Bench in case of Pagariya Auto Center (Supra). The Hon ble Gujarat High Court in the case of Charak Pharma (Supra) also held that when the matter was referred to Larger Bench, extended period cannot be invoked. As regard decision cited by Ld. AR, we observed that in case of Gopinath Agencies (Supra), there was no issue of limitation. In the case of Javiya Marketing, the decision of the Jurisdiction High Court of Gujarat in the case of Charak Pharma was not considered, therefore, the same are not applicable. 5. As per our a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case is of prior to Larger Bench decision, the matter was in favour of the assessee in many judgments and the matter was finally settled by Larger Bench. The period involved in the present case is much before the Larger Bench Decision, therefore, there is no malafide on the part of the appellant. Hence the demand for the extended period is set aside. 7. We further find that if any demand for the normal period exists, the adjudicating authority should be recomputed. As per the submission of the appellant, the appellant were receiving inputs along with duty paying documents, accordingly, they are entitled for the Cenvat credit subject to verification of duty paying document. As regard, the deduction of excise duty on inputs to arrive at valuation of the job work goods, it is settled law as per Hon ble Supreme Court judgment in case of Dai Ichi Karkaria Ltd (supra), therefore, if any demand arise for the normal period, the same needs to be re-quantified by giving benefit of Cenvat credit and deduction on Cenvat credit for the purpose of valuation of job work goods. 8. As per our above discussion, the appeals related to the demand of extended period are allowed and in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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