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2014 (10) TMI 559 - CESTAT NEW DELHI (LB)Area Based Exemption - whether the non-filing of declaration in terms of notification would result in denial of benefit of notification - assessee filed the declaration on 14.3.2008. - difference of opinion - Majority order - Exemption notification No. 50/2003-CE - Bar of limitation - Held that:- the condition regarding filing of declaration in the prescribed format as prescribed in the first para of the Exemption Notification has been prescribed to prevent the mis-use this exemption and to enable the Jurisdictional Central Excise Officers to detect well in time if an assessee is wrongly availing of the exemption whether deliberately or otherwise. - the Appellant Company is not eligible for exemption for the period prior to 14.03.08. Moreover when the notification itself provide that the option for exemption shall courts cannot extend the benefit of this exemption for the period prior to the date of opting for the exemption, therefore, on merits, the case is in the Department’s favour. Demand is barred by limitation having been raised by show cause notice dated 31.3.11 for the period 20.5.2006 to 13.3.2008 invoking the extended period of limitation. In terms of section 11 A of the Central Excise Act, 1944, the extended period is available to the Revenue in case duties have not been paid by reason of fraud, suppression or any willful mis-statement with intent to avail payment of duty. When the appellant was not required to pay any duty, if they would have exercised their option in writing, where is the question of malafide intention to evade payment of duty. Otherwise also we find that investigations were made by the Revenue with the appellants authorised representative, immediately after filing of declaration by them on 14.3.08, even then the show cause notice was issued in 2011. We find no justification for the same and agree with the learned advocate that the demand is wholly barred by limitation. The same is accordingly set aside along with setting aside of the penalties imposed upon both the appellants. - Decided in favour of assessee.
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