9911796707
TMI Blog2008 (9) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... & 2444/2004 - A/2013-2014/2008-WZB/AHD - Dated:- 17-9-2008 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) Third Member on Reference: Shri K.K. Agarwal, Member (T) S/Shri V.S. Nankani and Hardik Modh, Advocates, for the Appellant. Dr. M.K. Rajak, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)].- The appellant is engaged in the manufacture of electric wires and cables falling under chapter 85 of the Central Excise Tariff Act, 1985. The dispute in the present appeal relates to supply of such wires to M/s. Maharashtra State Electricity Board (MSEB) and M/s. West Bengal State Electricity Board (WBSEB) by availing the benefit of exemption Notification No.108/95-C.E. The said notification exempts goods supplied to projects which are financed by the World Bank, the Asian Development Bank or any international organization, subject to fulfillment of conditions enumerated therein. One of the condition is that duty exemption certificates would be issued from the appropriate officers of the project and counter signed by the Principal Secretary. There is no dispute that such duty exemption certificate issued by the Technical Director and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of the notification and the benefit was so extended by the authorities after satisfying themselves about fulfilment of the conditions like production of certificate etc. and as such it cannot be said that any material facts were suppressed by the appellant from the Revenue so as to invoke extended period of limitation. He relied upon various precedent decisions of the Tribunal wherein the benefit of the said notification was extended to the assessees supplying the goods to projects financed by Japan Bank for International Cooperation and such demands were quashed by the Tribunal by observing that there was bona fide belief on the part of the assessees. Reliance stands placed to the Tribunal's decision in the case of Bharat Heavy Electricals Ltd. [2006 (205) E.L.T. 564 (Tri.-Del)], M/s.Bhanu IVRCL Associates [2006 (194) E.L.T. 460 (Tri.-Bang.)] and M/s. Jyoti Structures Ltd. [2004 (167) E.L.T. 226 (Tri.- Mum)]. 4. We find that an identical dispute arose in the above decisions and the Tribunal observed that inasmuch as the benefit was being availed by the appellants on the basis of certificates issued by the project authorities, the error was on the part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty upon them. The penalty is accordingly set aside. 6. Appeals are disposed off in above terms. (Pronounced in Court on...................) Sd/- (Archana Wadhwa) Member (J) Dated 12-5-2008 7. [Order per : B.S.V. Murthy, Member (T)].- I have perused the order proposed by my ld. sister Mrs. Archana Wadhwa and since I am not in a position to persuade myself to accept the same, I proceed to record a separate order. 8. The arguments advanced facts of the case have already been discussed hence not repeated. 9. Notification No. 108/95-C.E., dated 28-8-1995 as amended at the relevant time required the appellants to fulfil the following conditions to avail the exemption provided thereunder. The manufacturer produces a certificate to the Asst. Commissioner of Central Excise having jurisdiction over his factory before clearance of the said goods.(emphasis provided) from the executive head of the Project Implementing Authority and counter signed by the Principle Secretary or the Secretary (Finance) in the concerned state government that the said goods are required for the execution of the project and that the said projec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. Commissioner. In the list of annexures given in the covering letters for submission of the RT-12 returns also there is no mention of the certificates under Notification No.108/95. Similarly in the 173B declaration filed by the appellant on 10-1-2001, only Notification no. has been mentioned. It is well settled law that the provisions of exemption notification have to be fulfilled in their entirety and when the notification requires submission of the certificate before clearance, if it is not done so, suppression is clearly attracted. 12. Appellants have cited the followmg cases (a) M/s. Jyoti Structures Ltd. [2004 (167) E.L.T. 226 (Tri.-Mum.)], (b) M/s. Bhanu IVRCL Associates [2006 (194) E.L.T. 460 (Tri.-Bang.)], (c) M/s. Bharat Heavy Electricals Ltd. [2006 (205) E.L.T. 564 (Tri.-Del.)], and stated that the circumstances are similar and therefore those judgments have to be followed. 13. In the case of M/s. Jyoti Structures Ltd., there is a clear observation by the Tribunal in para 4 that "the said certificate was duly placed before the central excise authorities and the benefit of notification was availed with the consent and knowledge of the authorities." T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d according to the self-assessment procedure, it is the assessee who has to request for provisional assessment in case they have doubt regarding valuation or classification or any other aspect which has a bearing on the levy of duty. The appellants have chosen to assess the goods finally and thereby the Department could take action only after they started investigation. In view of the foregoing, the demand under proviso to Section 11A, penalty under Section 11AC and interest under Section 11AB as imposed by the Commissioner are upheld. As regards penalty on Shri Francis D. Silva, Commercial Manager-cum-authorised signatory of M/s. Polycab Wires P. Ltd. it is felt that the penalty is excessive since he is only an employee and accordingly penalty is ordered to be reduced to Rs.10,000/- only. Sd/- (B.S.V. Murthy) Member (T) DIFFERENCE OF OPINION 15. Whether the demand of duty of Rs. 50,96,621 + interest invoking extended period is to be ordered to be recalculated applying normal period of limitation as held by Member (Judicial) or uphold invoking extended period as held by Member (Technical). 16. Whether penalty of Rs. 50,96,621 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch certificate would have been submitted as otherwise clearance would not have been allowed by the jurisdictional Assistant Commissioner. The certificate was duly signed by the empowered officers of the MSEB and WSEB and countersigned by the Principal Secretary/Secretary of the re state governments. When these authorities have certified that "they were entitled to the exemption under Notification No. 108/95, it may be allowed", then the appellants could not have doubted it, as the same was coming from a government authority. In view of this, they cannot be said to have a ma/a fide intention to evade duty. 21. I am completely in agreement with the pleas taken by the appellants and hold that their bonafides cannot be doubted once the certificate was signed by the specified authority who requested the jurisdictional Assistant Commissioner to allow exemption. The appellants cannot be said to have a mala fide intention as duty was required to be paid by the customers, who were government authorities and therefore, could not have colluded with the manufacturer for evasion of duty. The manufacturer did not stand to gain anything by evading duty which was to be paid by the various gov ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
