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TMI Blog2019 (7) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... der the exemption Notification No. 53/97-CUS, which exempts the goods specified in the table annexed thereto, when imported into India for the purpose of manufacture of articles for export of India or for being used in connection with the production or packaging or job work for export of goods by a 100% Eou, approved by the board of Approvals, subject to conditions? 2. The facts of the Appeal in brief are as follows. The Appellants, an 100% EOU, had imported an Elevator on 1.10.2001 valued at Rs. 5,91,365/- duty free by availing the benefit of Notification No. 53/97-Cus. as amended. Since according to the department, the said Elevator was not used in the manufacture of export goods and therefore denying the benefit of the aforesaid exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the storage area at different floor within the factory premises of the appellant and therefore it is being used as material handling equipment. He further submitted that the elevator was used exclusively for material handling only. He also submitted that even if it is not held to be a capital good, still the Appellants are entitled for the exemption notification aforesaid, as the import of the elevator in question has been approved by the Board of Approval. He referred to the communication dated 3.1.2005 received by the Appellants from the office of the Development Commissioner, SEEPZ SEZ, Ministry of Commerce & Industry, Mumbai. He also brought to our notice that thereafter on 5.9.2005 in the Meeting of the Combined Board of Approvals f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bangalore; 2009(247) ELT 402 (Tri.Bang.). He also submitted that the elevator was imported on in the month of October, 2001 whereas the audit letter demanding duty/show cause notice, has been issued on 15.10.2004, which is beyond the normal period of limitation. According to learned counsel since there was no allegation of any suppression of facts or mis-statement in the show cause notice therefore the same is liable to be quashed on this ground alone. Per contra, the learned Authorised Representative reiterated the findings recorded in the impugned order and prayed for dismissal of appeal filed by the Appellant. 4. In order to appreciate the issues involved, we have gone through the Notification No.53/97-cus.dated 3.6.1997. The said not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, if any, leviable thereon under section 3 of the said Customs Tariff Act subject to the following conditions, namely....................... THE TABLE Serial No. Description of goods (1) (2) 1. Capital goods. . . 4. Material handling equipments, namely, forklifts, overhead Cranes, mobile cranes, crawler cranes, hoists and Stackers. ...... 17. Any other item required in relation to production of export Goods with the prior approval of the Board of Approval." While interpreting the aforesaid notification, the Hon'ble Supreme Court in the matter of Moser Baer India Ltd. v. Commr. of Customs, Noida; 2015 (325) E.L.T. 236 (S.C.) set aside the order of the Tribunal denying the benefit of the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l point in view of decision in the matter of GE India Technology Centre (supra) as cited by the learned counsel since it goes to the root of the matter. So far as the extended period is concerned, we have gone through the letter/show cause notice dated 15.10.2004 and found that it nowhere used the word 'suppression' or 'mis-statement' but only mentioned that the concession availed is irregular. But this submission has been casually brushed aside by the learned commissioner by citing the head-note of the decision of the Hon'ble Gujarat High Court in the matter of Neminath Fabrics Pvt. Ltd. 2010(256) ELT 369 (Guj.) without discussing the decision any further as to how the same is applicable in the light of the facts of the instant matter nor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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