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2013 (6) TMI 676 - CESTAT MUMBAIBenefit of Notification No. 23/2003-C.E., dated 31-3-2003 as amended by Notification No. 22/2006-C.E., dated 1-3-2006 - Whether the appellants are entitled for the benefit of Notification No. 23/2003, dated 31-3-2003 as amended - Held that:- The benefit of the notification is available after fulfilling the condition No. 1 of the said notification - Tribunal held that the appellant has availed special exemption granted by the State of U.P. in respect of clearance made to DTA within U.P. only and are paying sales tax in respect of clearance made to some of the States. In other words, part of the clearances are not suffering sales tax while rest of the clearances are subject to sales tax/VAT. The Larger Bench of the Tribunal held that in respect of a 100% EOU availing sales tax exemption for determining the excise duty payable based on aggregate value of customs duty, the element of SAD should be taken into account. Therefore, on merits the appellants are not having any case. Appellant has declared to the department before the first clearance of the tractor that the appellants are availing the benefit of Notification 23/2003 which was well within the knowledge of the department. Therefore, the appellants cannot be accused of having suppressed the fact of availing the benefit of Notification 23/2003 without considering the SAD while determining the assessable value. Therefore, extended period of limitation is not invocable in the facts of this case. Accordingly, the demand, beyond the normal period of limitation is set aside. As the allegation of suppression is not sustainable therefore, following the decision of Rajasthan Spinning & Weaving Mills (2009 (5) TMI 15 - SUPREME COURT OF INDIA), penalty imposed under Section 11AC is also not sustainable. Admittedly, the appellant is availing the benefit of exemption from payment of whole of Sales Tax/VAT in respect of its sales of Agricultural Tractors and parts thereof by virtue of the above mentioned order dated 1-4-2005. Consequently, the appellant is not eligible for the benefit of the Notification No. 23/2003-C.E., dated 31-3-2003 - Decided partly in favour of assessee.
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