9911796707
TMI Blog2019 (11) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... fide belief that on the basis of various judgments that excise duty was payable by the principal supplier of the raw material. Extended period of limitation - HELD THAT:- It is settled law in various judgments in the case of MARSHA PHARMA PVT. LTD. VERSUS COMMISSIONER OF C. EX., VADODARA [ 2009 (6) TMI 818 - CESTAT, AHMEDABAD] which was upheld by Hon ble Gujarat High Court in COMMISSIONER - CENTRAL EXCISE CUSTOMS VADODARA - I VERSUS MARSHA PHARMA PVT LTD [ 2010 (9) TMI 1125 - GUJARAT HIGH COURT] and also in case of COMMISSIONER OF C. EX., CUS. ST., VAPI VERSUS 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. The appeals related to the demand of extended period are allowed and in respect of demand for the normal period it is remanded to the adjudicating authority for re-quantification of the demand It is made clear that since we have held that there was no malafide on the part of the appellants, no penalty is imposable on all the appellants in respect of any duty liability arise after re-quantification. Appeal allowed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he factory gate. Para 3(A) (e) of SSI exemption Notification provided for exclusion of goods which were exempted under Notification No. 214/86-CE dated 25.03.1986 and two other job work Notification even though the supplier of the material had not followed the procedure of job work Notification. In view of such impression about the job work production, the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rloskar Brothers Ltd 1988 (34) ELT 30 (Bom.) Apex Steel (P) Ltd 1995 (80) ELT 368 (Tribunal) Fedders Lloyd Corporation Ltd 2001 (135) ELT 1331 (Tri.Del.) 4. He further submits that for determining the value of goods produced on job work, the element of excise duty involved in inputs and raw material is required deduction as held by Larger Bench of this Tribunal in case of Dai Ichi Karkaria Ltd 1996 (81) ELT 676 (Tribunal). This decision of the Tribunal was confirmed by Hon ble Supreme Court in case of Dai Ichi Karkaria Ltd reported in 1999 (112) ELT 353 (SC). He further submits 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Charak Pharma P. Ltd (supra) that the demand for the extended period of limitation was not permissible when the issue was referred to Larger Bench of Tribunal. Considering this judgment in case of Dharti Automobiles (supra) vide Final Order No. A/11715/2018 dated 30.07.2018 passed by CESTAT-Ahmedabad, the Tribunal has held under: 5. We have carefully considered the submissions made by both the sides and perused the records. We find that there is no dispute that the issue was not free from doubt, there were conflicting opinion from different bench and the matter was referred to Larger Bench. The issue was also clarified by the board Circular No. 87/5/2006 dated 06.11.2006. In these circumstances, the entertaining bonafied belief by the appellant 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation cannot be invoked. In 5 | P a g e E / 1 1 3 / 2 0 0 9 - D B support of this contention, he relied on the decision of Tribunal in the case of Marsha Pharma Pvt. Ltd. (supra). 7. We find that as per the decision of Thermax Babcock Wilcox Ltd. (supra) the liability to pay duty in respect of goods produced on job work basis lies with the appellant being manufacturer of goods. However, since the issue regarding liability of duty on manufacturer vis a vis principal was referred to Larger Bench of Tribunal in case of Thermax Babcock Wilcox Ltd. (supra) extended period of limitation cannot be invoked in view of the decision of Tribunal in case of Marsha Pharma Pvt. Ltd. In view of above, demand beyond the normal period of limitation is set aside. The penalty is also set aside. Appeal is partly allowed in above terms. In view of above consistent view taken by this 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 Lar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
