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TMI Blog2019 (8) TMI 1501X X X X Extracts X X X X X X X X Extracts X X X X ..... paid applicable duty on goods. Since the market conditions improved, the appellant continued to function as EOU and the in-principle approval issued for de-bonding lapsed since they did not complete the exit formalities. The assessee claimed refund of duty paid on the ground that they did not finally exitfrom EOU. The refund was allowed by lower authority. In the appeal filed by the Revenue against the said refund order, the Appellate Commissioner allowed the appeal while noting that there is no provision for re-bonding. Time Limitation - HELD THAT:- The entire facts were known to the Department. Moreover, the Ld. Commissioner in impugned order para 5.3 has recorded the fact of disclosures made in ER-2 return filed for September 2011, disclosing the clearance of by-products by claiming exemption - since adequate disclosures were duly made in the ER-2 returns, there cannot be any case of suppression and therefore, the SCN issued in April 2016 for raising demand of duty on DTA clearances made by appellant in September 2011 is wholly barred by limitation of time. Appeal allowed - decided in favor of appellant. - Excise Appeal No.75291 of 2018 - Final Order No.76379/2019 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant self assessed the liability amounting to ₹ 3,86,23,277/- (valuation as per applicable Excise Duty) in respect of the by-products and intimated the same to the Assistant Commissioner, Central Excise deptt. 6th September, 2011 Assistant Commissioner, C.E., allowed clearance of remaining stock of goods on deposition of duty as per self assessment value. No Objection certificate shall be issued subject to completion of such formalities. September 2011 Appellant cleared 1796.797 MT of Naphthalene and 8310.569 MT of H.C. Oil from its EOU to its DTA unit at a value of ₹ 26,78,45,198/- on payment of CE Duty amounting to ₹ 3,86,23,277/- after availing benefit of exemption Notification. The said disclosure was duly made in ER-2 returns duly acknowledged by C.E. deptt. 17th January 2012 Appellant requested to Development Commissioner for withdrawal of its application dated 29th July 2011 to exit from EOU. 14th February 2012 Development Commissioner accepted appellant request to withdraw the request for exiting fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of Naphthalene and Creosote Oil under 6.8(g) of FTP instead of instead of 6.8(a) as mentioned in the above letter dated 13.09.2012 19th December 2012 In view of appellant s letter dated 04.12.2012, Development Commissioner accorded permission and revised appellant s LOP considering Creosote oil Napthalene as By-product and Carbonised Pitch as finished product for export 20th December 2012 Development Commissioner accorded permission for DTA sale of balance quantity of by-products of ₹ 400 lakh in terms of para 6.8(g) of FTP and DTA sale for ₹ 26,78,45,198/- already made was noted. 2nd April 2013 Appellant again applied to the Development Commissioner to seek permission to exit from EOU Scheme. 6th May 2013 Development Commissioner issued in-principle approval to exit from EOU Scheme and directed the appellant to submit No-Dues Certificate . 4th June 2013 Appellant wrote to Assistant Commissioner, C.E, for issuance of No-Dues Certificate . The appellant stated that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Central Excise Act, 1944 readwith Section 28(4) of the Customs Act 1962, alongwith interest under Section 28AA of the Customs Act read with section 11AA of Central Excise Act and imposed penalty of ₹ 4,62,92,690/- in terms of Section 112 of Customs Act read with Section 11AC of the Excise Act. The assessee is in appeal before us against the said order. 4. Sri Rajeev Agarwal, CA, appeared for the appellant and Sri S.S.Chattopadhyay, Ld.D.R. appeared for the Revenue. 5. The Learned CA submitted that the Learned Commissioner made an erroneous finding that the appellant has deliberately misguided the department by way of portraying itself as a regular 100% EOU for availing the benefit of Notification No.23/2003. He stated that as per Note no. (ii) of Appendix 14-I-L of Hand Book of Procedures (HBP) prescribed under the FTP , it is stated that an EOU unit shall continue to be treated as an EOU until the date of final exit order. He stated that though the appellant applied to exit from EOU Scheme, the same was withdrawn vide their letter dated 17.01.2012, which was also accepted by the Development Commissioner. It is his submission that the appellant continued to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of Hon ble Gujarat High Court in the case of Commissioner v. Meghmani Dyes Intermediates Ltd. 2013 (288) ELT 514 (Guj.) wherein it has been held that allegations against an EOU cannot be made for suppression of facts if all details/information is provided in ER-2 return. Similar view has been taken by the Hon ble Bombay High Court in CCE., Pune-I v. Emcure Pharmaceuticals Ltd. 2016 (342) ELT 172 (Bom.). He also relied on the judgement in the case of CCE, Mumbai v. A. S. Moloobhoy Sons [2015] 57 taxmann.com 297 (SC) wherein it has been observed by the Apex Court that when all the facts and manner of use of goods is disclosed, there cannot be any suppression of fact. Further, he relied on the Tribunal s decision in Wenger and Company v. CCE, Delhi [2016] 75 taxmann.com 243 (New Delhi-CESTAT) wherein it has been observed that when revenue is in full knowledge of the things since the very beginning, extended period of limitation cannot be invoked. 6. The Ld. DR appearing for the Revenue at the outset submitted that the very clause (g) of para 6.8 of FTP, which relates to clearance of by-product to DTA unit, is not appearing in Serial no. 3 of Notification no. 23/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. Allowing the appeal filed by the assessee, the Tribunal observed that - 5. We have gone through the records of the case carefully. We find that the Dy. Commissioner has granted the refund taking into account the factual position and also the EXIM policy. It has been stated that as per EXIM policy a unit goes out of EOU scheme only when the final exit order is given by the Development Commissioner after obtaining a no-objection certificate from the jurisdictional Customs and Central Excise authorities on payment of applicable duties on all capital goods/raw materials/finished goods, etc., in stock and after canceling the customs licence. In the present case, these formalities had not been completed. Moreover, the de-bonding permission by the Development Commissioner has lapsed. Hence, the unit is continuing as EOU and that position has been confirmed by the Development Commissioner in his letter dated 9-12-2004. As the unit continues to function as EOU, the grant of refund of duty paid on capital goods is in order. Hence, we set aside the impugned Order-in-Appeal and allow the party s appeal. 9. In view of the above, we agree with the contention made by the Ld. CA that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 4. These very facts were, therefore, appreciated by the Tribunal and in arriving at the conclusion that the show cause notice and the proceedings in pursuance thereof were barred by limitation. It may be that the Tribunal dealt with an incidental contention of the Revenue. Merely because that incidental question has been dealt with, we cannot loose sight and shift the focus from the main question. The main question was the applicability of Section 11A and invocation of the extended period thereunder. The extended period could not have been invoked in the absence of the requisite ingredients and to be found in Clauses (a) to (e) of sub-section (4) of Section 11A of the Central Excise Act, 1944. This is clearly a finding of fact and reached in the backdrop of the assessee s peculiar case. We do not think that such findings raise any substantial question of law. The Tribunal s view cannot be said to be perverse. It is a possible view of the matter. The appeal is devoid of merits and is dismissed. Further, we also find that Hon ble Gujarat High Court in the case of Meghmani Dyes Intermediates Ltd. (Supra),as relied by the appellant, it has been held that an EOU cannot be ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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