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2010 (12) TMI 396 - AT - Central ExciseDemand - Limitation - Suppression of facts - Exemption Notification No. 108/95-C.E. dated 28-8-95 - The Respondents have filed declarations intimating the Department about the supply of goods to JBIC - As far as the contention of the Revenue that the Commissioner (Appeals) has not taken into consideration the declarations made on the invoices; admittedly nothing prevented the department to take action at that stage and to deny the benefit of the notification to the respondent - Find that the permission applied for by the respondents has not been rejected by the Department at any stage - Thus the Department failed to establish that there was suppression of fact or willful misstatement etc. on the part of the respondent - Therefore setting aside the demand as time barred under Section 11A of CEA 1944 - Decided in favour of assessee.
Issues:
- Appeal against duty demand and penalty imposition based on exemption Notification No. 108/95-C.E. - Interpretation of whether the Japan Bank for International Co-operation (JBIC) qualifies as an International Organization under the United Nations of Privilege and Immunities Act, 1947. - Consideration of time limitation under Section 11A of the Central Excise Act for raising duty demand beyond the normal period. - Examination of whether there was suppression of facts or willful misstatement by the respondent to evade payment of duty. Analysis: 1. Appeal against Duty Demand and Penalty Imposition: The case involved an appeal by the Revenue against the Order-in-Appeal setting aside the duty demand of Rs. 7,20,226/- and the penalty imposed by the lower authority. The respondents, engaged in manufacturing ceramics, availed exemption under Notification No. 108/95-C.E. The dispute arose as the JBIC, to which the goods were supplied, was not considered an International Organization under the relevant Act. The lower authority confirmed the demand and penalty, leading to the appeal before the Commissioner (Appeals). 2. Interpretation of JBIC as an International Organization: The main contention was whether JBIC qualified as an International Organization under the United Nations of Privilege and Immunities Act, 1947, for the respondents to avail the exemption. The Revenue argued that the respondents were not entitled to the benefit of the notification due to JBIC not meeting the criteria. However, the Tribunal found that the Department failed to establish that there was any suppression of fact or willful misstatement by the respondents in this regard, thereby upholding the Order-in-Appeal setting aside the demand. 3. Time Limitation under Section 11A: The period involved in the case was from 17-3-2001 to 31-3-2001, and the show-cause cum demand notice was issued on 21-4-2005, beyond the normal one-year period under Section 11A of the Central Excise Act. The Commissioner (Appeals) noted that the respondents had submitted statutory declarations claiming exemption under the notification with full details and permissions sought for duty-free clearances, indicating no suppression of facts or willful misstatement. As the permission requested was not rejected by the Department, the Tribunal upheld the Order-in-Appeal on the grounds that the demand was time-barred. 4. Suppression of Facts or Willful Misstatement: The Tribunal carefully examined the submissions, statutory declarations, and permissions sought by the respondents. It was noted that the Department had the opportunity to act upon the declarations made on the invoices but failed to do so. The Tribunal found no evidence of suppression of facts or willful misstatement by the respondents, as they had duly informed the Department about the supply of goods to JBIC. Consequently, the appeal was dismissed as lacking merit, affirming the decision of the Commissioner (Appeals) and upholding the Order-in-Appeal.
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