9911796707
TMI Blog2002 (5) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... lty of Rs. 50,000/- each on appellants Nos. 2 and 3. 2. The facts are not in dispute. The firm appellant No. l got its unit registered as 100% export oriented unit and obtained permission in that regard from the Government of India, Ministry of Industries. Accordingly, the firm was required to export 100% of their production for 10 years as per Exim Policy. The production of the firm was to be treated as manufactured in bond. The firm was engaged in the manufacture of dehydrated onion, falling under sub-heading 701.90 of the CETA and were fully exempt from the payment of central excise duty. The firm, also, filed requisite declaration and availed exemption from the operation of rule 174 of the Central Excise Rules. The appellants Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing as 100% EOU, is concerned the same has not been disputed before us. The learned Counsel has only contended that the appellants even without taking the permission from the Government of India, Ministry of Industries, for working as 100% EOU, could export goods and as such, the permission taken by them was only superfluous and did not affect their right to clear the goods in the DTA, being not restricted goods. Therefore, no violation of the conditions of the permission could be attributed to them for confirming the duty against them. But we are unable to subscribe this contention of the counsel. The appellants could export their production i.e. dehydrated onion before getting their unit registered as 100% EOU and without obtaining necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od beyond 5 years could even otherwise be issued under Section 11A(1) of the Central Excise Act. 5. The learned SDR, on the other hand, however, has refuted this contention of the counsel also. But we have gone through the record and we find that the demand for more than 5 years had been raised through the impugned show cause notice. The demand had been raised for the period December, 1992 to July, 1995, whereas the show cause notice was issued to the appellants on 5-1-1998. The demand could only be restricted to a period of 5 years even if there was a suppression of material facts by the appellants from the excise department. The duty demand could be reckoned only from 5-1-98 backward for a period of 5 years. The rate of duty during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclaration no suppression could be inferred, there has to be positive omission or commission of facts resulting in fraud, suppression or wilful mis-statement with intent to evade duty, is not attracted to the facts of the present case. The unit of the appellants was admittedly registered as 100% EOU. Before clearing the goods in DTA, they were required to take permission or central excise registration. But none of such act was done by them, rather they quitely without taking any permission cleared the goods in DTA, without payment of duty. There was obviously suppression of material facts and wilful mis-statement of facts by them, with intent to evade duty. Therefore, the extended period of limitation had been rightly invoked against them a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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