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TMI Blog2016 (7) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... dering the findings that there has been no suppression on the part of the appellants and in view of the decisions of the judicial fora quoted above, we hold that amendment to the original Notification No.108/95-CE dated 28.8.1995 made by Notification No.13/2008-CE dated 1.3.2008 would have prospective operation and the demand against the appellants can be sustained only for one year period which is within the period of limitation and the penalty imposed by the impugned order deserves to be set aside. - Decided partly in favor of appellant. - E/296/2010-DB - Final Order No. 20340/2016 - Dated:- 2-2-2016 - Smt. Archana Wadhwa, Judicial Member and Shri Ashok K. Arya, Technical Member Shri S. Muthu Venkataraman, Advocate For the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Notification No.13/2008-CE; dated 1.3.2008] 2.1.1 Consequently, the effect of this amendment is that the benefit of the original Notification No.108/95-CE dated 28.8.1995 would be available only when the goods supplied and brought into approved projects are not withdrawn by the supplier or the contractor. 3. Revenue s main argument is that in the case of 196 Hydraulic Excavators valued at ₹ 73,57,50,952/-, which were supplied taking benefit of this Notification No.108/95-CE dated 28.8.1995 for the supplies as per the unamended Notification during the period for 2004-05 to 2008-09 (up to December 2008) new condition that the goods required for the projects are not to be withdrawn after the execution of the project (as made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xports Ltd. vs. CCE: 2010 (255) E.L.T. 117, further stating that demand up to 28.2.2008 has to be set aside and the demand from 1.3.2008 to 31.8.2008 needs to be set aside as they have all along been approaching Deputy Commissioner of Central Excise through their letters dated 15.3.2008, 21.4.2008 and 22.4.2008 on the subject matter and there has not been any evidence that the goods were being diverted. 4.2 The appellants have also pleaded that the demand for extended period is not applicable inter alia on account of following reasons: Appellant through letter dated 17.1.2002 indicated the procedure that would be followed for clearance under notification No.108/95. Met the Asst. Commissioner on 17.1.2002. On 18.2.2002 wrote one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Sirala Exports Ltd. vs. CCE (supra), this amendment cannot be made effective retrospectively. In this regard, the decision of the Hon ble Supreme Court in the case of UOI vs. Martin Lottery Agencies Ltd. (supra) is quoted below: 35.Reverting to the decision of a Kerala High Court in CIT v. S.R. Patton [(1992) 193 ITR 49 (Ker.)] wherein Gujarat High Court s judgment was followed, this Court noticed that explanation was not held to be a declaratory one but thereby the scope of Section 9(1)(ii) of the Act was widened. The law in the aforementioned premise was laid down as under: 17. As was affirmed by this Court in Goslino Mario (supra), a cardinal principle of the tax law is that the law to be applied is that which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeks to give an artificial meaning earned in India and bring about a change effectively in the existing law and in addition is stated to come into force with effect from a future date, there is no principle of interpretation which would justify reading the Explanation as operating retrospectively. (Emphasis supplied) 36. It is, therefore, evident that by reason of an explanation, a substantive law may also be introduced. If a substantive law is introduced, it will have no retrospective effect. 5.3.1 Further we quote from CESTAT Ahmedabads decision in the case of Silara Exports Ltd. (supra) as below: 3..........The notification as it existed prior to introduction of explanation was interpreted while considering and quash ..... X X X X Extracts X X X X X X X X Extracts X X X X
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