TMI Blog2011 (8) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... i M.H. Patil, Advocate for the appellant Shri V.K. Singh, SDR for the respondent Per: Mr. Ashok Jindal, Member (Judicial) Appeal E/2143/03 E/2144/03 are filed by the assessee firm and its executive Shri S.K. Sadanand Reddy and appeal no. E/3812/05 and E/3813/05 are filed by CCE, Thane against the said assessee firm and its executive Shri S.K.S Reddy. The assessee has also filed cross objection in the revenue appeal vide E/CO-178/06. 2. The facts of the case are that the assessee is having two factories one at Nashik and another at Thane where they are engaged in the manufacture of hardware and accessories for transmission line. The assessee were awarded the contract for supply of hardware and accessories for transmission line by Transmission Corporation of Andhra Pradesh Ltd. (APTRANSCO) as well as main contract like M/s RPG Transmission, Jyoti Structure, Kalpataru etc. The assessee before clearance of the goods filed CL declarations under Notification 108/95-CE from their Nashik factory along with certificate from project implementing authority and also excise duty exemption certificate duly countersigned by Secretary to Government of Andhra Pradesh (Budget) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o duty was also confirmed under Section 11AC on the ground that the assessee did not declare the fact that JBIC was not notified International Organisation. In order to avail benefit under the said Notification, a penalty of Rs.10000/- was also imposed on Shri S.K.S Shetty, the General Manager of the assessee firm. The duty already paid was appropriated. The assessee firm and the GM are in appeal against the said order. 3. CCE, Thane vide OIO 29/SK/29/2004-Th dated 31.12.2004 has dropped the proceedings against the assessee as well as the General Manger, Shri S.K.S. Shetty holding that there was no suppression on the part of the assessee in view of the filing of CL declaration along with purchase orders and required certificate by the project implementing authority duly counter signed by the Principal Secretary of Andhra Pradesh and accordingly, entire demands since was beyond the period of one year was dropped as time barred. As show-cause notice was issued on 31.8.2004 for the period from 23.10.2000 to 21.3.2001 it is beyond the normal period of limitation. Revenue has filed appeal against the said order against the assessee firm and its general Manager. In the appeals of Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see to believe that JBIC is notified International Organisations for availing exemption under Notn.108/95-CE and they are entitled for exemption. Under the said circumstances, invoking the extended period or, for that matter, penal provisions is absolutely incorrect, as both, the designated Authorities as well as the assessee believed that supplies to the Project financed by JBIC, were exempt under Notn.No.108/95-CE. 6.5 It was further submitted that such belief that JBIC was a notified International Organization and exemption to projects financed by JBIC was available under Notn.108/95-CE was carried not only by the Assessees, in the present case, but also various other assesses situated in different parts of the country, who also had supplied the goods to the projects financed by JBIC under the said Notification, as evidenced by the reported judgments. 6.6 It was also submitted that the demand for normal period is also not sustainable, as all the requisite documents/Certificates were submitted and assessed to by the Departmental Authorities and all the clearances were made under Certificates issued by Designated Authorities, which were valid until cancelled and cancellati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95-CE dtd. 28.08.1995, in view of Certificates issued by Project Implementing Authority and countersigned by Principal Secretary to State Government. It was also held by Majority that in such cases none of the documents on which the assessee lay hands or were accessible to the assessee showed or gave indication that JBIC was not notified. This judgment of Tribunal has been upheld by Hon ble Gujarat High Court and the Dept. s SLP against the said Gujarat High Court judgment also has been dismissed by Hon ble Supreme Court, vide its judgment and Order dated 15.09.2010. The judgments in the cases of Bharat Heavy Electricals Ltd. 2006 (205) ELT 564 (T), Spic Organics Ltd. 2006 (199) ELT 73 (T) Bhanu IVRCL Associates 2006 (194) ELT 460 (T) also related to the projects financed by JBIC, under Notn. No. 108/95 and, in similar set of facts and circumstances, held that extended period and penal provisions are not invocable. The ratio of the said judgments squarely applies to the present case and has become final as he same have not been disturbed. 7. On the other hand, Shri V.K. Singh, SDR supported the order passed by the Commissioner of Central Excise, Nashik and submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to their Nashik factory. The Commissioner has invoked the extended period of limitation only on the ground that the assessee did not disclose the status of JBIC and that the said letters of Superintendent were made aware to the assessee of non-availability of exemption under 108/95. To support this contention, he relied on a) Merchant Impex 2007 (219) ELT 508 (T) b) Rama Vilas Service Ltd. 2007 (212) ELT 95 (T). He also submitted that the decision in the case of Sterlite Industries (supra) is not applicable to the present case, as in that case validity of post facto cancellation of the Certificates by APTRANSCO, on the ground of promissory estoppel, and there was no issue before the High Court that whether the extended period is invocable or not. He also submitted that the decision of the High Court in Exide Inds. (supra) will also not apply as in that case the appellant tried to mislead the department that goods supplied to the project of State Government were funded by an International Organisation. Therefore, there was a clear case of suppression. He further submitted that after considering the judgment of Sterlite Inds. (supra) this Tribunal in the case of IMP Powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the argument advanced by the ld. SDR that these letters of Superintendent may be treated as show-cause notice is not sustainable. 14. Now we come to the main issue involved in this case. In the case of Polycab Wires (supra) where the issue, was similar to the facts of this case, was considered and in that case it was held that the extended period of limitation is not invocable as assessee was under bonafide belief that they were entitled to Notification 108/95 in view of the certificate issued by Project implementing authority. It was also held that in such cases, none of the documents on which the assessee relies was indicates that JBIC was not notified as an International Organisation. The decision of this Tribunal was upheld by the Hon'ble High Court of Gujarat and again confirmed by the apex court vide order dated 15.9.2010. In the case of Bharat Heavy Electricals (supra) and Bhanu IVRCL Associates, Spic Organics Ltd. (supra) also having the similar facts where the projects were financed by JBIC under Notification 108/95, it was held that the extended period and penal provisions are not invocable. We do agree with the contention of the ld. advocate that in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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