Page 164 - GSTL_11th June 2020_Vol 37_Part 2

250 GST LAW TIMES [ Vol. 37
der Chapter 59.11 to make the appellant entitled for SSI exemption under Notifi-
cation No. 8/2003-C.E., dated 1-3-2003.
5.2 Assertion of appellant that it was not the manufacturer since manu-
facturing was done on job work basis was rightly rejected by the Commissioner
(Appeals) in invoking Rule 12B of the Central Excise Rules, 2002 that was insert-
ed vide Notification No. 24/2003-C.E. (N.T.), dated 25-3-2003, whereby the ap-
pellant was to be treated as assessee for all Central Excise purposes. However,
the claim of the appellant that even if the products is classified under Chapter
54.06, then also the appellant was eligible for Cenvat credit as well as redetermi-
nation of assessable value in the light of Hon’ble Supreme Court judgement in
the case of CCE, Delhi v. Maruti Udyog Ltd. reported in [2002 (141) E.L.T. 3 (S.C.)]
and the Board Circular No. 803/36/2004-CX, dated 27-12-2004. That aspect was
not dealt in the Order-in-Appeal that would have made the appellant eligible to
avail and utilise the Cenvat credit to the tune of Rs. 5,53,293/- thereby substan-
tially reduced the duty liability.
5.3 Be that as it may, the crux of the issue lies in the fact of invocation
of extended period for raising duty demand for the period from April, 2003 to
July, 2004. Admittedly show cause notice was issued on 17-4-2006 which was not
within the normal period prescribed at the relevant time and the Learned Com-
missioner (Appeals) had confirmed the justification of invocation of extended
period by observing that proprietor had admitted that they had misclassified the
product and therefore a clear case of suppression was established against the
appellant, contrary to his own observation and acknowledgement in the order
itself that vide its letter dated 29-4-2004 appellant had informed to the depart-
ment that it was claiming benefit of exemption Notification No. 8/2003-C.E., dat-
ed 1-3-2003 and was engaged in the manufacture of woven fabrics of synthetic
filament yarn falling under Chapter 5911. Further as found from the Order-in-
Appeal in Para 5A(ii) the proprietor had stated in his statement dated 17-1-2006
that they “mistakenly” classified the product under Chapter 59 instead of Chap-
ter 54. This being the facts on record and in view of the decision reported in [2011
(274) E.L.T. 468 (Tri. - Ahmd.)] whereby this Tribunal had held that claim of
wrong classification or benefit of notification by itself is no suppression, we are
of the view that no case of suppression of facts to evade duty is made out to justi-
fy imposition of duty liability against the appellant to invoke extended period
though no error is noticed in the Order-in-Appeal in respect of classification of
the product cleared by the appellant. Hence the order.
ORDER
6. The appeal is allowed and the order passed by the Commissioner of
Central Excise (Appeals), Mumbai-I. vide Order-in-Appeal No. M-V/RKS/
18/2011 dated 9-6-2011 is hereby set aside.
(Order pronounced in the Court on 30-8-2019)

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GST LAW TIMES  11th June 2020  164