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TMI Blog2018 (6) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... y raised in SCN dated 01.12.2006 is required to be restricted to that falling within the normal period of limitation. Demand of duty on the cotton waste which stands cleared by the appellant in the DTA - Held that:- The decision in the case of M/s STI India covers the subsequent period and hence is applicable to the facts of the present case [2017 (4) TMI 328 - CESTAT NEW DELHI], where it was held that the value of cotton waste which stands exempted from duty is not required to be counted for DTA sales entitlement - there is no justification to include value of cotton waste in the DTA entitlement. The appeals filed by the appellants are partially allowed and the matter remanded to adjudicating authority for re-quantification of the demand within the normal period. - Appeal No. E/53357-53359/2014, 53668/2014 with E/Cross/50724/2015 - Final Order No. 52161-52164/2018 - Dated:- 7-6-2018 - V. Padmanabhan, Member ( Technical ) And Ms. Rachna Gupta, Member ( Judicial ) For the Appellant : Shri Manish Saharan, Advocate For the Respondent : Shri M.R. Sharma, DR Vice-Versa ORDER Per V. Padmanabhan Appellant, M/s. Parasrampuria International, A Division of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for concessional rate of duty and would attract duty at the normal rate in terms of the proviso to Section 3 (1) of the Central Excise Act, 1944. It is on this basis that show cause notice dated 1.12.2006 was issued to the appellant company, its Director, Shri S.K. Chabra and its Asstt. General Manager, Shri S.V. Sharma for (a) recovery of the central excise duty including education cess amounting to ₹ 437.73 lakhs along with interest thereon under Section 11 AB; (b) imposition of penalty on the appellant company under Section 11 AC of the Central Excise Act, 1944 and (c) imposition of penalty under Rule 26 of the Central Excise Rules,2004 on Shri S.K. Chabra, Director and Shri S.V. Sharma, Asstt. General Manager. Subsequently another show cause notice dated 11.06.2007 was issued for the period from April, 2006 to December, 2006 demanding duty of ₹ 35,98,319/- from the Appellant Company on the issue of inclusion of DTA sales of cotton waste in excess of the overall DTA sale entitlement limit. 3. The above show cause notices were adjudicated by the Commissioner vide order-in-original dated 2.4.2014 by which -- (a) he confirmed total duty demand of & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % of FOB value of the exports. He justified the issue of SCN invoking the extended period with the submission that the appellant has suppressed the sale of cotton waste and did not account these figures towards DTA entitlement limit. ii) The Revenue s appeal is filed on the ground that the Commissioner has erred in taking the view that the cotton waste was non-excisable and hence there is no need to add the value thereof to determine the ceiling of DTA entitlement. He relied on the case of M/s Nahar Industrial Enterprises Vs Commissioner 2003 (154) ELT 284 (Tri. Del.) in which the Tribunal held that sale of rejects shall be counted under DTA sale entitlement as per the Exim Policy. The Hon ble Supreme Court has dismissed the appeal filed against the Tribunal s decision as reported in 2011 (268) ELT A50 (S.C.). 8. The ld Advocate opposed the contention of Revenue. He argued that the issue regarding DTA sales entitlement has been decided in the recent case of Commissioner Vs STI India Limited-2017 (347) ELT 294 (Tri.Del.) In the above decision, the Tribunal held that the value of cotton waste which stands exempted from duty is not required to be counted for DTA sales entitlemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but Revenue failed to do so. For such re-computing and raising the revised demand, a further SCN dated 01.12.2006 has been issued in which the allegation of suppression has been made once again. In the circumstances of the case, we are of the view that the decision of the Hon ble Supreme Court in the M/s Nizam Sugar Factory case will be applicable and Revenue will be precluded from raising the allegation of suppression in the SCN dated 01.12.2006. Consequently, the demand of duty raised in SCN dated 01.12.2006 is required to be restricted to that falling within the normal period of limitation. Beyond this period, the demand is set aside. The adjudicating authority will re-quantify the demand as above. The mandatory penalty equal to the duty demanded also will not be liable to the paid. However, the demand for interest on the re-computed demand as well as the penalties imposed on the Director as well as Asstt. General Manager are upheld. 12. The SCN dated 01.12.2006 had also proposed demand of duty on the cotton waste which stands cleared by the appellant in the DTA. The SCN also proposed including the value of such cotton waste for re-determining the DTA entitlement. But the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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