Page 198 - ELT_1st July 2020_Vol 373_Part 1

108 EXCISE LAW TIMES [ Vol. 373

XIIF Under val- 22486 Since the amount is small, the appellant
uation of is not contesting the same on merits as
goods the same is liable to be set aside on the
(period issue of classification of goods itself. As
12/92 to the error is minor, the penalty may be
10/1993) set aside.
Notes :
(i) In all the above Cases, since no Excise Duty has been charged, cum-
duly benefit is required to be granted if it held that Excise Duty is
payable.
(ii) If the product is held as liable to Excise duty, the appellant would be
entitled for Cenvat credit for the inputs, input services and capital.
16. As far as the demand on VIPI under this show cause notice is con-
cerned, he would submit that of the total amount a demand of Rs. 1,52,241/- was
initially dropped by the earlier adjudicating authority in Order-in-Original No.
10/2005, dated 28-6-2005. Aggrieved by this decision, the department filed an
appeal before the Tribunal. The appellant also filed an appeal being aggrieved by
the balance confirmation and the appellant’s appeal was remanded and the de-
partment’s appeal was subsequently dismissed vide Final Order No. 21986/2015,
dated 23-9-2015. Therefore, the demand needs to be dropped to this extent on
this count alone.
17. Learned Counsel further submits that with respect to both the units
there is a question of interpretation of statutory provisions and classification of
goods and therefore, any allegation of suppression with an intent to evade pay-
ment of duty cannot be fastened on the appellants and hence extended period of
limitation needs to be set aside. Further, if any demand is confirmed they should
be given the benefit of cum-duty to the extent it is confirmed. He, further pleads
that there is no case for confiscation of machinery or imposition of redemption
fine or imposition of penalties either on the firms or on the individuals. There-
fore, he pleads that the entire demand may be dropped.
18. Learned Departmental Representative with respect to this show
cause notice reiterates the findings in the impugned order and submits that the
demands were, after due consideration, confirmed and therefore, the demand,
interest as well as the penalties need to be upheld.
19. We have considered the arguments on both sides. With respect to
this show cause notice, we find that the demand against VIPI is on the following
grounds :
(1) Clearances without payment of duty amount to Rs. 1,21,892/- : The rele-
vant period for this is 1-4-1991 to 31-3-1992. Learned Counsel sub-
mits that this demand will not be sustainable if the department hold
that VIPI is a dummy unit and VIPPL is the only correct unit as al-
leged in the first show cause notice. We have considered this argu-
ment and find that as far as the allegation regarding VIPI being
dummy unit is concerned, we have not accepted it and therefore, set
aside partly the demand with respect to the first show cause notice.
Therefore, the demand to this extent under this show cause notice
sustains. It is based on the clearances made in the name of VIPI and
clearances in the name of AEI operating from the same premises

EXCISE LAW TIMES  1st July 2020  198