TMI Blog2009 (5) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt decision should be 26-9-2002 the date on which earlier circular was withdrawn and not the date 12-12-2001 on which SC rendered the decision – demand for the period subsequent to 26-9-2002, can be sustained Notification provided where Department takes action without invoking proviso to Section 11A. - E/736-737/2007 - A/942-943/2009-WZB/AHD, - Dated:- 29-5-2009 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) Shri P.M. Dave, Advocate, for the Appellant. Shri S.R. Prasad, SDR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. - M/s. Gupta Dyeing and Printing Mills Private Limited (appellant for short) is engaged in the manufacture of Dyed Polyester Yarn from raw material Poly Texturised/Crimp yarn, Poly Twisted Yarn etc. issue involved is their eligibility for exemption under Notification No. 6/2000-CE dated 1-3-2000 and other notifications which continued to exempt subject to the same conditions during the period from April 2000 to March 2003. Appellant was availing exemption Notification No. 6/2000-CE on the dyed yarn manufactured by them out of non-duty paid exempted twisted yarn, whereas Notification provided for exemption to dy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and such cases were not to be re-opened. He submits that show cause notice in Para 14 cites the decision of the Hon'ble Supreme Court in Dhiren Chemical case in support of the case but observation of the Hon'ble Supreme Court in the two decisions cited above shows that where benefit of exemption had already been extended, Revenue shall be bound by such decisions and cannot reopen past assessments. It is therefore his submission that appellant was eligible for exemption thorough out the period. In view of the fact that twisted Yarn utilized by them for dying, though was exempted and did not suffer any levy of excise duty, appellants are eligible for the exemption under Notification No. 6/2000-CE dated 1-3-2000 as amended, since appropriate duty as it was understood during the relevant period, till the decision in Dhiren Chemical Industries case was rendered, could be nil rate also. Further, he also submits that show cause notice is time barred in view of the fact that appellants had filed classification list claiming exemption and the clearances of dyed yarn availing exemption were reflected in the monthly returns filed by the appellant during the period. In any case, even if it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mical case, both Revenue as well as Trade were under the impression that where goods are exempted or attracted nil rate subject to the condition that the same are manufactured out of raw material on which appropriate duty has been paid, the appropriate duty could be nil rate of duty or fully exempted goods. Further, Supreme Court also observed in Dhiren Chemical case that the Revenue would be bound by beneficial circular issued by the Board. In Kalyani Packaging case, the Hon'ble Supreme Court again observed that even though the decision in Dhiren Chemical case would be applicable to all cases, the assessments which are already completed need not be reopened by the department. The Supreme Court interpreted Para 9 of Dhiren Chemical case in Kalyani Packaging case, the relevant paragraphs of both the cases are reproduced :- Para-9 of Dhiren Chemical Industries case (2002 (139) E.L.T. 3 (S.C.) "9. We need to made it clear that, regardless of the interpretation that we have placed on the said phrase, if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase, that interpretation will be bindin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appellant would be liable to pay duty, cut off date should be 26-9-2002 the date on which Board issued Circular. We feel that we should go for the date of issue of Board circular and not for the date of decision, because the Government often takes a decision to amend the law retrospectively or take other measures and it is not necessary that decision of the Court would be implemented in all cases. There have been cases where the Government has amended the law with retrospective effect and the Hon'ble Supreme Court also upheld such amendments. 6. In view of above, we come to the conclusion that demand for the period subsequent to 26-9-2002, can be sustained. Ld. Advocate submitted that show cause notice was issued on 20-4-2005 whereas the period for which demand has been raised is from April 2002 to March 2003. It is his submission that in view of the fact that appellants had filed classification declaration and had also submitted details of such exempted clearance in their monthly return, the extended period is not invokable. Further, he also submits that as is seen from the facts of the case as well from the discussion above, appellants genuinely felt eligible for the benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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