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TMI Blog2001 (3) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... and whether the extended period of limitation for demanding duty is invokable under Section 11A(1) of the Central Excise Act. 2. We heard Shri K.K. Anand, ld. Advocate, for M/s. Haryana Roadways Engineering Corporation Ltd., Shri J.S. Agarwal ld. Advocate for M/s. Haryana Coach Body Builders and M/s. Batra Coach Builders, and Shri B.L. Narsimhan, ld. Advocate for M/s. Commercial Engineering and Body Builders Co. Pvt. Ltd., and M/s. Ambala Coach Builders, and Shri M.P. Singh, ld. DR, on behalf of the Revenue. 3. The Larger Bench of the Appellate Tribunal vide Misc. Order No. 73/2000-B, dated 22-5-2000 [2000 (119) E.L.T. 713 (Tribunal-LB)] has held, following the dismissal of the appeal filed by the Revenue in the matter of Kamal Auto Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistration certificate was surrendered by them and the department also granted them the refund of the amount lying unutilised in the PLA. He, further, submitted that the finding of the Commissioner that where the classification of the goods is involved and the same is decided by the Supreme Court, the duty can be demanded for the whole period even if the issue was within the knowledge of the department is totally fallacious and contrary to the settled legal position; that it is settled law that Proviso to Section 11A can be applied only in those cases where the assessee has committed any fraud, collusion, willful mis-statement or suppressed the facts with the intent to evade duty; that where the facts are in the knowledge of Department ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the period of six months; that no penalty is imposable as they had not violated any of the provisions of the Central Excise Act or the Rules with intent to evade payment of duty; that they were of bona fide belief that in view of Note 3 to Chapter 87 their activity would amount to manufacture of the complete vehicles which would be classifiable under Headings 87.02 to 87.05 and not as bodies under Heading 87.07; that further in terms of the contract entered into by them with their customers, excise duty liability is to be charged from their buyers and as such there was no incentive what so over to evade payment of duty. He, further, claimed that they would be eligible for Modvat credit of the duty paid on inputs and it should be give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this Chapter Note does not cover the bodies built on chassis fitted with engines which is classifiable under Chapter 87.06. Therefore, the classification of bodies built by independent manufacturers, on chassis is classifiable under 87.07". This decision of the Tribunal has been confirmed by the Supreme Court as observed by the Larger Bench in Misc. Order No. 73/2000, dated 25-5-2000 [2000 (119) E.L.T. 713 (Tribunal-LB)] as the appeals filed by the Revenue against the decision in Kamal Auto Industries case were dismissed on the ground of delay as well as on merits. In view of this the classification of the bodies built on the chassis are classifiable under Heading 87.07 of CETA. We, however, agree with the ld. Advocate that extended p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Note 3 to Chapter 87 of the Tariff and particularly in view of the fact that Department also contested the matter in the Supreme Court to the effect that the activity of fabricating of bodies on the chassis will be classification under Headings 87.02 to 87.05. We, therefore, hold that no penalty is imposable on any of the Appellants and accordingly we set aside the penalty wherever imposed on the Appellants in these matters. 9. We confirm, the demand for the normal period i.e. demands covering the period of six months and accordingly order as under : (1) In Appeal No. E/2402/99-B filed by M/s. Haryana Roadways Engineering Corporation, demand for period May 1994 to October 1998 is set aside and the demand of duty is upheld for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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