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2012 (11) TMI 1016 - AT - Central ExciseDuty demand - Whether, in relation to clearances of goods to SEZ units without payment of duty during the period from June 2008 to June 2009, they should pay the duty determined by the original authority and the penalty imposed by it - Held that:- The SEZ units were admittedly entitled to procure their inputs without payment of duty from DTA units like the appellant. It is not in dispute that the inputs supplied by the appellant were duly received by the SEZ units. These supplies were exports for purposes of the SEZ Act. These supplies were effected under cover of proper invoices and ARE-1s. The Customs Officer posted at the SEZ verified these documents and made necessary endorsements therein. It is not in dispute that, had the appellant paid duty on the above clearances, they could have claimed rebate under the relevant provisions of the Central Excise Rules 2002 read with the relevant provisions of the SEZ Act/Rules. In such a revenue-neutral situation, no intent to evade payment of duty can be attributed to the appellant. The show-cause notice in this case alleged that the appellant indulged in wilful misstatement of facts with intent to evade payment of duty. This allegation is baseless inasmuch as every clearance to the SEZ units was promptly intimated to the Central Excise Range Officer. In the letter of intimation, the appellant had clearly stated that they had cleared the goods against exemption certificates issued by the SEZ Units. Clearance of goods, without payment of duty, to the SEZ units by the appellant was clearly within the knowledge of the department during the period of dispute. Hence there was no wilful misstatement of any fact, let alone with intent to evade payment of duty. The show-cause notice issued in March 2010 to recover duty on goods cleared in 2008 & 2009 is clearly barred by limitation. Non-execution of bond and non-mention of LUT particulars in ARE-1s are cited as serious lapses of the appellant. Execution of bond or, alternatively, mention of LUT particulars in ARE-1 is a procedure prescribed for ensuring that the goods cleared by the DTA unit are received by the SEZ unit. In the present case, receipt of the goods cleared by the appellant, by the SEZ units is an admitted fact. If that be so, the proceedings have to be set aside by condonation of procedural lapses - Decided in favour of assessee.
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