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TMI Blog2009 (1) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.1,42,535/- during the period from August 1989 to September 1993. – held that - the appellants did not derive any extra benefit by following a wrong procedure. Since the deemed credit on aluminium was higher than zinc, the appellants could have got higher amount of CENVAT credit if they were to follow proper procedure – on the issue of period of limitation department failed to prove that the facts were not know to is – demand set aside. - E/1398/2008 - A/208/2009-WZB/AHD - Dated:- 22-1-2009 - Shri B.S.V. Murthy, Member (T) Shri K.R. Bhave, Consultant, for the Appellant. Shri D.S. Negi SDR, for the Respondent. [Order].- The appellants were purchasing virgin zinc metal and virgin aluminium metal and sending zinc to smelter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excess to the extent of 3% to be returned to them or to be disposed of on payment of duty. However he submits that there was no intention to avoid duty in view of the fact that at that time the appellants were entitled to deemed credit on zinc and aluminium etc. As per the Order No. 342-1-88 (TRU), dt. 1-3-1989, credit admissible on unwrought zinc aluminium was Rs. 4,550/- per ton whereas credit admissible on unwrought zinc was Rs. 3,600/- per ton. The deemed credit varied from time to time but it always remained higher for unwrought aluminium and lower for zinc during the period under dispute. It is his contention that they could have easily taken the credit available in respect of aluminium which was higher than zinc and in fact by not fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Chemphar Drugs Liniments reported in 1989 (40) E.L.T. 276 (S.C.) in support of his contention that to invoke extended period something other than mere failure on the part of manufacture is to be proved. Similar were the views taken by the Hon'ble Supreme Court in CCE v. Pushpam Pharmaceuticals Ltd. reported in 1995 (78) E.L.T. 401 (S.C). The learned D.R. on behalf of the Revenue submits that Commissioner has considered the issue of suppression in detail and submits that the appellants never disclosed the fact that the job worker will be retaining some quantity of zinc sent by the assessee. The laboratory tests conducted by the assessee's also showed that they could not have unaware of the fact that they were short receiving zinc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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