9911796707
TMI Blog2010 (1) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the EOU scheme was sent by the appellants on 15-10-2005 to the Development Commissioner. In the letter dated 14-11-2005 addressed to the Assistant Commissioner of Central Excise, the appellants intimated the Development Commissioner's no objection to the conversion and they also intimated that they are agreeable to pay customs and central excise duty for the capital goods [on the amortized value], raw materials, consumables and finished goods in stock at the applicable rate of duty both for the imported and indigenous goods. In their letter dated 1-12-2005 to the Development Commissioner, the appellants intimated duty liability on imported capital goods and indigenous capital goods separately. In the enclosure they also enclosed thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner is an assessment order where it has been stated that the appellants have discharged the entire liability of excise duty on indigenous capital goods. This letter has not been appealed against by the Department and revised. Hence the Department is precluded from issuing a demand notice. In this connection he cites the decision of the Hon'ble Madras High Court in the case of Madurai Power Corporation (P) Ltd. v. Deputy Commissioner of Central Excise, Madurai-I - 2008 (229) E.L.T. 521 (Mad.). The learned counsel also takes the plea that while fixing the export obligation under the EPCG scheme, the DGFT authorities have fixed at higher value taking into account the excise duty liability on the indigenously procured capital goods and hence t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on account of short-levy, non-levy etc. under Section 11A of the Central Excise Act, 1944 and Section 28 of the Customs Act, 1962, as has been held in the following decisions of the Hon'ble Madras High Court and Hon'ble Supreme Court :- (i) Venus Enterprises v. Commissioner of Customs, Chennai - 2006 (199) E.L.T. 405 (Mad.) (ii) Union of India v. Jain Shudh Vanaspati Ltd. -1996 (86) E.L.T. 460 (S.C.) He further states that the decision of the Hon'ble Madras High Court in the case of Venus Enterprises (supra) has been upheld by the Hon'ble Supreme Court vide Venus Enterprises v. Commissioner - 2007 (209) E.L.T. A61 (S.C). 6. After hearing both sides and perusal of the case records including the cited decisions, we find that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Assistant Commissioner in his letter dated 18-5-2006 intimated to the Development Commissioner with a copy to the appellants that the appellants have discharged the entire liability to excise duty of Rs. 1,30,50,369/- on indigenous capital goods, the appellants as good citizens and honest taxpayers should have come forward to disclose that they have not paid the duty amount said to have been discharged in the said letter and also to pay up the duty amount. Instead, they chose to remain quiet and when the duty demand has been issued subsequently in respect of the non/short payment, the appellants are now taking advantage of their own inexplicable silence while taking the plea that the said letter dated 18-5-2006 written by the Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iya Blue Industries Ltd. v. Commissioner of Customs (Preventive) - 2004 (172) E.L.T. 145 (S.C.) and holds that Section 11A does not indicate that the legislature intended it to override Section 35E. It also holds that unless following the procedure under Section 35E, the Annexure-I certificate is cancelled or rejected by the competent authority, it is not permissible to invoke Section 11A of the Act. A reading of the said decision does point to the conclusion that unless an order of assessment is reversed in appeal, no demand can be issued under Section 11A. However, we find that in the case of Venus Enterprises (supra); the same Hon'ble Madras High Court had already decided the issue earlier taking note of the Hon'ble Supreme Court's decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the clear finding with regard to the mis-declaration and suppression of value, which led to the undervaluation and proposed short-levy of duty, we do not see any lack of jurisdiction on the part of the adjudicating authority to issue notice under Section 28(1) of the Act." As pointed out by the learned SDR we find that the order of the Hon'ble Madras High Courl in Venus Enterprises (supra) has been upheld by the Hon'ble Supreme Court as reported in 2007 (209) E.L.T. A61 (S.C.). We respectfully follow the decision of the Hon'ble Madras High Court in the case of Venus Enterprises (supra) which has been upheld by the Hon'ble Supreme Court and hold that the contention of the appellants that no duty demand can be raised without filing an app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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