9911796707
TMI Blog2011 (5) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... cture, processing, packaging and export of software/hardware or service - Decided against of assessee. Demand of duty - Limitation - Held that:- Revenue held that there is no time limit when demand is raised for non fulfillment of conditions accepted in the bond executed - find that the decision of the Tribunal in the case of Endress + Hauser Flowtec (I) Pvt.Ltd. [2008 (11) TMI 159 - CESTAT, MUMBAI] is applicable as far as this aspect is considered - Decided against the assessee. - E/1391/07-Mum - A/383/2011-WZB/C-II/(EB) - Dated:- 19-5-2011 - Mr. B.S.V.Murthy, Mr.Ashok Jindal, JJ. Shri V.S.Nankani, advocate with Shri Aqeel Sheerazi, advocate for Appellant Shri A. K. Prasad, Jt.CDR for Respondent Per : B.S.V.Murthy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for setting up an infrastructure facility for STP units under STP scheme at Magarpatta City. Subsequently, an agreement was entered into by MTDCC with Director, STPI, Pune. According to this agreement, the appellants were required to comply with all the terms and conditions contained in the approval letter dated 10.10.2000 cited above. Further, the agreement also specifically provided since your Unit is not a Software exporting unit you are only a infrastructure provider to Software exporters, the export obligation applicable to you is NIL. The ld.advocate also took us through the Notification No.22/03. He submitted that the exemption under Notification No.22/03 is to the goods and, therefore, it is not relevant as to who is the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmits that the permission was granted by the Asstt. Commissioner on 6.10.03 to MTDCC for procurement of indigenous capital goods subject to conditions in the Notification and the appellant did not fulfill the condition since they were not engaged in any manufacture, processing, packaging and export of software. 4. We have considered the submissions made by both sides on merits. We find that if the interpretation given by the ld.counsel to the notification No.22/03 dated 31.3.03 is accepted, it will result in a situation where the goods can be imported by an infrastructure provider and installe in a unit in STP, but the other conditions especially one relating to net foreign exchange earning, would not be applicable. It has to be noted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by both sides but we are not going into those decisions since the facts in this case are unique and none of the cases are having similar facts. 5. The second issue we have to consider is whether extended period has been correctly invoked by the Revenue and can be sustained. The ld.counsel submitted that there was no suppression or misdeclaration at all. CT 3 certificate was issued by the concerned officer who had issued the Customs bonded warehousing licence and also under whom MTDCC was working. The ld. Jt.CDR submitted that in their letter dated 1.10.03, MTDCC had written to the Asstt.Commissioner while seeking issue of CT 3 certificate for procurement of capital goods that they have been granted the status of 100% EOU. The second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a misdeclaration on the part of the appellant. In this case, obviously, the appellant was not at all a 100% EOU. The Notification No.22/03, as already observed above, does not provide any exemption for capital goods procured by STPI infrastructure provider but only to an 100% EOU or STP unit. That being the situation, the conclusion that emerges is that the appellant deliberately made a declaration in their letter that they were an 100% EOU. Further, we cannot forget the fact or ignore the fact that the Asstt.Commissioner could have believed that the appellant is an 100% EOU since besides being the infrastructure provider, the appellant can also have an 100% EOU in the STP unit themselves. That being the position, it is quite possible that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been granted to them for setting up of the STP unit vide letter No.15(72)/2000-IPC dated 10/10/2000, where as on verification of the aforesaid letter of the Govt.of India, Ministry of I.T., it is observed that the permission/approval was accorded for setting up infrastructure facility for STP units under STP scheme at Magarpatta City, Hadapsar and not a STPI status. 7. Where as it appears that the permission was granted by the Assistant Commissioner vide F.No.VII/CUS/STP/26/03 dated 6.10.03 to M/s. MTDCC for procurement of indigenous Capital goods/parts subject to fulfillment of conditions stipulated vide Notification No.22/2003-CE dated 31/03/2003, but it was observed that they did not fulfill the condition as stipulated vide Notficati ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
