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TMI Blog2005 (4) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... L were clearly entitled to the benefit of Notification No. 67/95-C.E. in respect of the container-handles inasmuch as the said item was captively consumed by M/s. TPCL and M/s. APCL. It is settled law vide the case law cited by ld. Counsel that, under Notification No. 67/95-C.E., inputs/capital goods could be captively consumed in a given factory by different manufacturers. It is, again, settled law that the benefit of an exemption Notification could be claimed at appellate stage. This is what M/s. TPCL has done in this case. We, therefore, allow the benefit of Notification No. 67/95-C.E. to M/s. TPCL in respect of the container-handles and, accordingly, set aside the demand of duty. It would follow that the penalties on M/s. TPCL cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als were contested by the parties. The original authority confirmed a demand of duty of Rs. 2,36,953/- against M/s. TPCL on the differential value (value attributable to handles) of the containers cleared by them to M/s. APCL during the above period and imposed on them a penalty of Rs. 15,48,000/-. The original authority also imposed a penalty of Rs. 15,48,000/- on M/s. APCL under Rule 209A and a further penalty of Rs. 1,000/- on them under Rule 198(2). The decision of the adjudicating authority was upheld by the Commissioner (Appeals). Hence the two appeals before us. 2. Ld. Counsel for M/s. TPCL submits that the fixing of handle to container by them in the premises of M/s. APCL was done, at the latter's request, as a special arrangeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 67/95-C.E. was not raised by the assessee before. In Appeal No. 640/2001, ld. JDR submits that the facts alleged in the show cause notice constituted enough ground for a penalty under Rule 209A on M/s. APCL. 4. After carefully considering the submissions, we think, we can straightaway proceed to allow Appeal No. 640/2001, wherein ld. Counsel for the appellants has pointed out that they are aggrieved by the penalty imposed on them under Rule 209A which provision was not invoked against them in the show cause notice. This submission of the ld. Counsel has not been rebutted. We also find that, though penalties were proposed on the appellants under Rules 173Q and 198, no penalty was proposed against them under Rule 209A. The penalty im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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