9911796707
TMI Blog2024 (12) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.2009 for the period January 2008 to March 2008 without invoking the extended period of limitation but subsequently on 19.08.2009, the department issued another show cause notice (SCN-2) for the period April 2007 to December 2007 by invoking the extended period of limitation, and both the show cause notices arose out of the same audit report. We find that it is a settled position of law that in a subsequent show cause notice arising out of the same audit report, the allegation of suppression cannot be alleged and extended period of limitation cannot be invoked in view of the various decisions relied upon by the appellant. SSI exemption as per N/N. 8/2003-CE - HELD THAT:- It is found that if the department s view that such branded medicame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also manufacturing some branded goods on behalf of certain other entities. 2.2 During the course of audit of the appellant's records, it was alleged that the appellant was ineligible for SSI exemption under the notification as the value of their clearances during 2006-07 was to the tune of Rs.6,86,45,813/- being in excess of the cap limit of Rupees four crores. On these allegations, a show cause notice dated 09.04.2009 (SCN-1) was issued by the department pertaining to the period January 2008 to March 2008 asking the appellant to explain why duty along with interest and penalty should not be recovered. Further, the department invoked extended period of limitation and issued another show cause notice dated 19.08.2009 (SCN-2) for a the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowledge of the department. In this regard, he relies on the following decisions: Nizam Sugar Factory Vs. Collector of Central Excise - 2006 (4) TMI 127 - Supreme Court. P B Pharmaceuticals (P) Ltd. Vs. Collector of Central Excise - 2003 (2) TMI 68 - Supreme Court Larsen Toubro Ltd. Vs. Commissioner of C. Ex, Pune-II - 2007 (5) TMI 1 - Supreme Court Pushpam Pharmaceuticals Company Vs. Collector of C.Ex., Bombay - 1995 (3) TMI 100 - Supreme Court ECE Industries Limited Vs. Commissioner of Central Excise, New Delhi - 2003 (3) TMI 136 - Supreme Court Commissioner of Customs Vs. MMK Jewellers Another - 2008 (3) TMI 5 - Supreme Court Commissioner Vs. Tetra Pack India Ltd. - 2015 (10) TMI 502 - Supreme Court Pahwa Chemicals Private Limited Vs. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. CCE, Nagpur 2012 (27) STR 258 (Tri. Mum.) M/s Mitra S.K. Pvt. Ltd. Vs. Commr. of Service Tax, Kolkata - 2023 (10) TMI 227 - CESTAT Kolkata M/s Bharat Electronics Limited Vs. Commissioner of G.S.T. and Central Excise, Chennai - 2023 (9) TMI 870 - CESTAT Chennai 4.4 The learned Counsel further submits that even the demand on merit is also not sustainable because in the present case the appellant is manufacturing goods bearing the brand name or trade name of another person, the exemption contained in Notification No. 8/2003-CE is admittedly not available to the said goods, as such clearances are not required to be taken into consideration for computing the total clearance of Rupees four crores. 4.5 He also submits that the department s argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en manufacturing various kind of items and some of these items may not have the facility of abatement under Central Excise law. Assessable value has to be determined by reducing the sale price in such a manner so as to arrive at the price on which the manufacturer would have sold the said goods in wholesale. In this regard, we take the support from CESTAT Kolkata decision in the case of Macneill Engineering Ltd. vs. CCE - 2001 (134) ELT 173 (Tri-Kolkata). It is to be noted that value has been defined in Explanation (c) to the Notification No. 8/2003 (supra); therefore, total turnover to decide on eligibility is to claim benefit of Notification No. 8/2003 (supra) to be computed by totalling the value of specified goods only. He further said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion cannot be alleged and extended period of limitation cannot be invoked in view of the various decisions relied upon by the appellant (cited supra in para 4.2). 7. Further, we find that it is a dispute pertaining to interpretation of a condition of the notification and in such circumstances, suppression of facts or contravention of law with intention to evade payment of tax cannot be alleged and this issue is also settled in favour of the assessee in various decisions relied upon by the appellant (cited supra in para 4.3). 8. Further, as regards the condition of the Notification No. 8/2003-CE, we find that if the department s view that such branded medicaments are exempted in terms of Notification No. 4/2006 cannot be accepted inasmuch a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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