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2019 (8) TMI 1501 - AT - Central Excise100% EOU - by-product cleared by EOU to DTA unit by availing exemption provided under Notification no. 23/2003-CE dated 31.03.2003 - HELD THAT:- In the instant case, the final de-bonding has been made on 31.03.2015 which is on record and not in dispute. We have also perused letter dated 14.02.2012 whereby the Development Commissioner duly accepted the request of the appellant to withdraw the application for exit from EOU and specifically allowed to continue as EOU - the clearance of goods (by-products) during the impugned period cannot be said to be in the course of exit from EOU scheme as per para 6.18 of FTP - the appellant is duly entitled to avail the exemption benefit under Notf. 23/2003 (serial no. 3). In the case of POOJA CREATIONS LTD. VERSUS COMMISSIONER OF CUSTOMS, BANGALORE [2007 (1) TMI 44 - CESTAT, BANGALORE] wherein the Tribunal has held that a unit goes out of EOU only when final exit order is given by the Development Commissioner after obtaining final no-objection letter. In that case also, the assessee applied for exit from the EOU scheme and they paid applicable duty on goods. Since the market conditions improved, the appellant continued to function as EOU and the in-principle approval issued for de-bonding lapsed since they did not complete the exit formalities. The assessee claimed refund of duty paid on the ground that they did not finally exitfrom EOU. The refund was allowed by lower authority. In the appeal filed by the Revenue against the said refund order, the Appellate Commissioner allowed the appeal while noting that there is no provision for re-bonding. Time Limitation - HELD THAT:- The entire facts were known to the Department. Moreover, the Ld. Commissioner in impugned order para 5.3 has recorded the fact of disclosures made in ER-2 return filed for September 2011, disclosing the clearance of by-products by claiming exemption - since adequate disclosures were duly made in the ER-2 returns, there cannot be any case of suppression and therefore, the SCN issued in April 2016 for raising demand of duty on DTA clearances made by appellant in September 2011 is wholly barred by limitation of time. Appeal allowed - decided in favor of appellant.
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