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TMI Blog2012 (3) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... World Bank. The Appellants cleared the goods from 23rd September, 1999 to March, 2001 and claimed exemption under Notification No. 108/95-C.E., dated 28-8-1995. The said exemption was available for projects financed by World Bank. However, the project was financed by World Bank only with effect from 1-3-2000. Therefore an issue arose whether the said exemption could be extended to goods cleared prior to that date. Since there was doubt on this issue the Appellants remitted an amount of Rs. 1,21,19,858/- and claimed that they were eligible for Cenvat credit on customs duty paid on inputs used to the extent of Rs. 1,13,28,587/-. Revenue issued a Show Cause Notice demanding duty of Rs. 2,34,48,545/- with a proposal to adjust the amount of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of the Tribunal in the case of Nestor Pharmaceuticals Ltd. v. C.C.E. - 2000 (116) E.L.T. 477 (T) to support their argument that the benefit of Notification No. 108/95-C.E. cannot be denied for the reasons that the entire cost was not borne by the international organisation. 5. The Appellants also submit that there was no suppression of fact on their part. The project authority had issued certificate required Notification No. 108/95-C.E. and the Appellants had availed exemption based on such certificate and therefore no suppression can be alleged based on the fact the World Bank financed expenditure from 1-3-2000 only. Therefore they contend that the entire demand is barred by limitation. 6. It is the further submission o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant Commissioner of Central Excise having jurisdiction over his factory :- (a) ............. (b) in the case the said goods are - (i) ................ (ii) Supplied to a project that has been approved by the Government of India and financed (whether by a loan or a grant) by an international organisation listed in the said Annexure, a certificate from an officer not below the rank of Deputy Secretary to the Government of India, in the Ministry of Finance (Department of Economic Affairs) that the said goods are required for the execution of the said project and that the said project has duly been approved by the Government of India. (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made out that such certificates were fraudulent or not issued by proper authority. 10. We are also not in agreement with the argument of the Appellants that the claim for Cenvat credit should be decided in a separate proceeding for the reason that the Bills of Entry concerned did not show payment of Customs duty. It stands explained by the Appellants that initially the goods were imported without payment of duty availing the exemption for goods imported for supply to a project financed by World Bank and when the issue that they might not be eligible for such exemption for the period prior to 1-3-2000 was pointed out to them they paid the duty subsequently. In the facts of the case duty paid on raw materials should have been taken int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der demanding differential excise duty of Rs. 1,13,28,687/- and interest thereon as well as penalty imposed under Rule 11AC of Central Excise Act read with Rule 25 of the Central Excise Rules, 2002. We make it clear that we are not passing any order with regard to refund of duty already paid. (Pronounced in Court on ...................) 14. [Per : Archana Wadhwa, Member (J)]. - I find myself in agreement with the order recorded by Learned Member (Technical) extending the benefit of Notification No. 108/95-C.E. to the appellant. However, I have not been able to convince myself to be in agreement with the observations of learned Member (Technical), as recorded in para 12 of the order proposed. Accordingly, following para is being recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefit of Notification No. 108/95-C.E., was available to the appellant and as such no duty demand could be confirmed against them by denying the benefit of said notification. Consequence of the order so recorded by the learned Member (Technical) would be that the demand confirmed against the appellant to the extent of Rs. 2,34,48,545/- is not sustainable against them. 17. It is further seen that the appellant have already deposited an amount of Rs. 1,21,19,858/-. The deposit of said duty was during the course of investigation against them. When the entire duty confirmed against the appellant stands set aside, duty deposited by them during the course of investigation becomes liable to be refunded to them in accordance with law. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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