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2015 (2) TMI 603 - AT - Central ExciseBenefit of exemption no. 13/98-CE - DTA Clearances - 100% EOU engaged in manufacture of spun silk yarn - Invocation of extended period of limitation - whether longer limitation period under proviso to section 11A(1) is applicable or the demand can be confirmed only for the normal limitation period - Held that:- Once it is accepted that the respondent under their letter dated 24.03.1999 had intimated the Department that they would be making DTA clearances on payment of applicable duty, which in their case is nil, and when the invoices under which the DTA clearances were made at nil rate of duty also bear the signatures of the Central Excise Officers, the Department cannot be allege that the appellant had concealed the fact of making the DTA clearances at nil rate of duty, and in this regard, in our view, non filing of ER-2 return would not make any difference, as the departmental officers otherwise knew that the respondent were making DTA clearances at nil rate of duty. It is not the allegation of the Department that the jurisdictional Central Excise Officers were in collusion with the Respondent company and had collaborated with the Respondent in evasion of duty. There is no infirmity in the Commissioner's order holding that the longer limitation period is not applicable. Once this finding is upheld, there would be no question of demanding interest under section 11AB, as during the period of dispute, interest under Section 11AB on the duty non levied, short levied, short paid or erroneous refunded was linked with the fact as to whether non-levy, short levy, short payment or erroneously refunded of the duty was in account of any fraud, wilful misstatement, suppression of facts etc., on the part of the assessee. When these elements are not there, the interest under section 11AB cannot be charged. Since, the elements for imposing longer limitation period are not present, in our view, there would be no justification for imposition of penalty on the General Manager and Directors of the appellant company under Rule 209-A as, for this purpose, there has to be evidence on record to show that these persons dealt with certain excisable goods in the manner specified in this rule while knowing that the goods are liable for the confiscation, while in this case there is no such evidence. As regards permitting the cum duty benefit, in our view, the same was in accordance with the Apex Court judgment in the cases of CCE vs Maruti Udyog Ltd. reported in [2002 (2) TMI 101 - Supreme Court] as this is not a case where there was deliberate short payment of duty. - No merit in appeal - Decided against Revenue.
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