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TMI Blog2011 (8) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... as main contract like M/s RPG Transmission, Jyoti Structure, Kalpataru etc. The assessee before clearance of the goods filed CL declarations under Notification 108/95-CE from their Nashik factory along with certificate from project implementing authority and also excise duty exemption certificate duly countersigned by Secretary to Government of Andhra Pradesh (Budget) FAC and also Purchase orders placed upon them. Similar declarations were also filed by the assessee for their Thane factory. To claim exemption under Notification 108/95, the assessee has to file CL declaration along with certificate issued by project implementing authority and excise duty exemption certificate countersigned by Secretary to the government of Andhra Pradesh and purchase orders. It is no dispute that the assessee has filed the documents as required under Notification 108/95. The said declarations were accepted by the department after due verification. Thereafter, the clearances were permitted to be affected by availing the exemption under Notification 108/95. The assessee had also filed the requisite returns which were accepted by the department. Thereafter, proceedings were initiated by DGCEI against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Andhra Pradesh and accordingly, entire demands since was beyond the period of one year was dropped as time barred. As show-cause notice was issued on 31.8.2004 for the period from 23.10.2000 to 21.3.2001 it is beyond the normal period of limitation. Revenue has filed appeal against the said order against the assessee firm and its general Manager. In the appeals of Revenue, the assessee has also filed a cross objection. 4. After going through the facts, as we observe that the common issue involved, therefore we dispose of all the appeals together. 5. The issue involved in these appeals are as under:- a) Whether exemption under Notification no. 108/95-CE dated 28.8.95 to supply to the goods to Simadhri Vizag transmission System Project, financed by JBIC, is admissible when subsequent to the clearance of goods, CBEC vide its letter dated 7.12.2001, has clarified that JBIC is not notified as an International Organisation under the United Nation (Privilege and Immunities) Act, 1947. b) Whether demands for the period beyond normal period of one year are sustainable, when clearance were done after filing CL-declaration along with copy of purchase orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inanced by JBIC under the said Notification, as evidenced by the reported judgments. 6.6 It was also submitted that the demand for normal period is also not sustainable, as all the requisite documents/Certificates were submitted and assessed to by the Departmental Authorities and all the clearances were made under Certificates issued by Designated Authorities, which were valid until cancelled and cancellation was done subsequent to clearances; inasmuch as from the Nashik factory, clearances were effected during the period from 17.10.2001 to 19.12.2001, while Certificates dated 18.03.2001, 8.3.2001, 26.08.2000 and 3.8.2001 were cancelled/withdrawn by letter dtd. 4.1.2002, based on CBEC clarification, at the behest of DGCEI on 7.12.2001. 6.7 Likewise, the certificates pertaining to Thane Factory, for clearances effected during the period from 23.10.2000 to 31.03.2001, were cancelled on 28.01.2002. In view of the above factual position, based on judgments on the issue, exemption for the clearances effected under Certificates, till their cancellation, is valid. 6.8 On the issue as to whether suppression can be alleged and extended period and penal provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssociates 2006 (194) ELT 460 (T) also related to the projects financed by JBIC, under Notn. No. 108/95 and, in similar set of facts and circumstances, held that extended period and penal provisions are not invocable. The ratio of the said judgments squarely applies to the present case and has become final as he same have not been disturbed. 7. On the other hand, Shri V.K. Singh, SDR supported the order passed by the Commissioner of Central Excise, Nashik and submitted that the purchase orders placed upon the assessee clearly indicates that excise duty was not payable by project implementing authority but has to be claimed by the assessee as supplementary cash assistance or deemed export benefit directly from the Government. He further submitted that in the case of CCE, Nashik the Superintendent vide letter dated 22.2.2002 has informed to the assessee that exemption under Notification no. 108/95 was not available as JBIC was not notified as an international organisation and had directed to pay the amount along with interest within a week s time. As the letter dated 22.2.2002 was issued within one year from the date of clearance therefore the department has taken action withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue before the High Court that whether the extended period is invocable or not. He also submitted that the decision of the High Court in Exide Inds. (supra) will also not apply as in that case the appellant tried to mislead the department that goods supplied to the project of State Government were funded by an International Organisation. Therefore, there was a clear case of suppression. He further submitted that after considering the judgment of Sterlite Inds. (supra) this Tribunal in the case of IMP Power Ltd. vide Order No. M/225/WZB/AHD/2001 dated 18.12.2008 has held that duty demand for the period beyond one year from the date of show-cause notice and penalty imposed under Section 11AC is not sustainable. Therefore he prayed that the assessee s appeals be allowed and the revenue s appeals be dismissed. 10. Heard both sides. 11. After hearing both sides, we find that from the argument of the ld. SDR (apart from the issue framed by the Tribunal in this case) another issue has also come up:- Whether the letters dated 22.2.2002 and 26.6.2002 issued by the Superintendent directing to pay duty amount as the exemption under Notification 108/95 was not available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not notified as an International Organisation. The decision of this Tribunal was upheld by the Hon'ble High Court of Gujarat and again confirmed by the apex court vide order dated 15.9.2010. In the case of Bharat Heavy Electricals (supra) and Bhanu IVRCL Associates, Spic Organics Ltd. (supra) also having the similar facts where the projects were financed by JBIC under Notification 108/95, it was held that the extended period and penal provisions are not invocable. We do agree with the contention of the ld. advocate that in the case of Sterlite Inds. (supra) the issue before the Hon'ble High Court of Andhra Pradesh was of cancellation of certificate of APTRANSCO on the ground of promissory estoppel and there was no issue with regard to whether in such facts and circumstances the extended period of limitation is invocable or not? In the case of Exide Inds. (supra) the Hon'ble High Court of Calcutta has clearly held that the assessee has tried to mislead the department by stating that the project of state government are funded by an international organisation. Therefore, these decisions are not applicable to the facts of this case. 15. We have examined the case in IMP power ..... X X X X Extracts X X X X X X X X Extracts X X X X
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