9911796707
TMI Blog2022 (6) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of above exemption notifications is not available to the impugned manufacturers. As regard the appellant s belief whether it is the bona fide or otherwise it is observed that it is not only the appellant but there are other manufacturers also who were under the bona fide belief that the goods in question is covered under the exemption Notification No 06/2006-CE . It is evident from the case of M/S ACCURATE TRANS HEAT PVT. LTD. SHRI KEDARMAL MANGILAL DERGER VERSUS COMMISSIONER OF CENTRAL EXCISE, SURAT [ 2018 (7) TMI 973 - CESTAT AHMEDABAD] , in that case also the assessee for the same machine were claiming the exemption notification - From the verification report, it is clear without any doubt that the range superintendent has verified the manufacturing activity physically and thereafter given the report that the product which is manufactured by the appellant is eligible for exemption under notification No. 06/2006-CE. The appellant thereafter filed ER- 1 return on 27.02.2008 therefore, all the information regarding the nature of goods claimed for exemption notification was within the knowledge of the department. Extended period of limitation - suppression of fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urnover in terms of Notification No. 08/2003-CE dated 01.03.2003. On 09.08.2007 the appellant was granted Central Excise Registration. The Jurisdiction Assistant Commissioner Central Excise directed the Range Superintendent to carry out the post facto verification of the premises and intended purpose for which application has been made. Vide letter dated 30.08.2007 the superintendent submitted the verification report to the Assistant Commissioner. The appellant filed ER-1 Return on 27.02.2008 for the quarter ending 21.12.2007. The appellant submitted a letter dated 28.08.2008 in response to the letter dated 18.02.2008 in which details of sales for the years prior to the registration were once again submitted. In November 2008, the audit was conducted by the Central Excise officers of the department. On 18.03.2009 the statement of the appellant was recorded by the officers of the department and thereafter the SCN dated 06.04.2009 was issued inter-alia raising demand of duty for the period 15.04.2004 to February 2008. In the SCN it was proposed to deny the exemption notification No 06/2002- CE dated 01.03.2002. Vide Order in Original dated 31.07.2010 proposals made in the SCN were co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is mentioned at Sr. 21 of the list 6 of notification No. 06/2002-CE dated 01.03.2002 as amended and further stated that the functioning of the manufactured by the appellant and the one specified in the notification is one and the same. 2.3 The appellant after obtaining registration had cleared the goods on payment of applicable duty in terms of Notification No. 06/2007-CE dated 01.03.2007 and filed ER-1 return. The appellant held a bona fide belief that the machines manufactured by the appellant were covered under the said notification and were exempt from Central Excise duty for the period 15.04.2004 to 12.08.2007 and the same were leviable to concessional rate of duty thereafter. 2.4 He submits that the bona fide view of the appellant was also the view of the department hence, there was no wilful mis- declaration or suppression of facts, it cannot be alleged that there was malafide on the part of appellant in not paying duty, consequently, the larger period of limitation cannot apply. 2.5 He submits that on identical issue, the Hon ble tribunal in the case of Accurate Trans Heat Pvt Ltd Vs. Commissioner of Central Excise Surat- 2018 (7) TMI 973- CESTAT AHMEDABAD has he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years of filing the appeal. It is observed that this letter was not considered by the lower authorities as the same was neither presented nor available at the time of adjudication . Since , only on this letter, by verification report, the superintendent has mentioned about availing the exemption notification No. 06/07-CE dated 01.03.2007, the appellant s submission is that there is no suppression of fact. Hence, the extended period of will not apply. We are of the view that since this vital letter dated 30.08.2007 was not dealt with by the lower authorities, entire matter on limitation needs to be reconsidered by the adjudicating authority. Accordingly, we set aside the impugned order and remand the matter to the Adjudicating Authority for passing a fresh order. The appeal is allowed by way of remand to the Adjudicating Authority. From the above observation in the remand proceeding, the adjudicating authority was to decide the invocation of larger period of demand considering the verification report given by the Range Superintendent. We find that the case on the merit was that the appellant was manufacturing and clearing the machine declaring the same as Relax Drum Washer m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is on better footing on the ground that the superintendent has carried out the verification and specific report in respect of the claim of exemption notification No 06/2006-CE was reported. The judgment in the case of Accurate Trans Heat Pvt Ltd is reproduced below:- These appeals have been filed by M/s Accurate Trans Heat Pvt Ltd and Shn Re Derger against order of Commissioner confirming the demand of Central Excise duty on Drum washer machine/relax drum machine by denying exemption Notification No 6/2002-CE dated 1.3.2002 and Notification No 6/2006-CE dated 1.3.2006, interest and imposition of penalty 2. Learned Counsel for the appellant pointed out that the appellants are engaged in manufacture of Drum washer machine/relax drum machine and claimed Nil rate of duty under Notification No 6/2002 date 1.3 2002 Sr No 193 and Sr No. 5 of List 6 Sr No 193 of the Notification exempts machine ore equipment specified in List 6 of the said notification from full Central Excise duty. Sr. No 5 of the said List read as under 5 Relax drum/conveyer drying machine (1) Drying range. (ii) Float aryer, (ii) Loop dryer. (iv) Drum dryer, (v) Jet dryer, (vi) Rapid dryer 2.1 He po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assertion that they have mis-declared the product. Their unit was also audited numerous times. The description in the returns is 'Relax drum machine and the benefit of notification has been claimed. In these circumstances, it cannot be said that the appellants had suppressed anything or had an intention to evade payment of duty 5. The appeals are consequently allowed on limitation. 4.3 In view of the above judgment coupled with the particular facts of the present case there is no doubt in our mind to hold that there is no suppression of fact with intent to evade payment of duty on the part of the appellant. In the present case the demand for the period 15.04.2004 to February 2008 was raised by the Show cause notice dated 06.04.2009 hence the entire demand is prior to normal period of one year, therefore the same is hit by the limitation. Accordingly we hold that the demand raised in the SCN and confirmed by the Adjudicating Authority is not sustainable being time barred. 4.4 As regard the reliance placed by the Learned AR on the judgments , on going through such judgments we find that on the face of the verification carried out by the Superintendent, the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
