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TMI Blog2011 (5) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise. MTDCC are infrastructure providers to STP units located at Magarpatt City and are not involved in manufacture, processing, packaging and export of software, hardware or services. On this ground, the Revenue entertained a view that MTDCC is not entitled to procure duty free capital goods/ parts in terms of Notification No.22/03 CE dated 31.3.03 and initiated proceedings by issue of show-cause notice which culminated in the impugned order whereby the demand for duty amounting to Rs. 1,85,23,320/- with interest has been confirmed. Further, penalty equal to the duty demanded has been imposed on MTDCC under Sec.11AC of the Central Excise Act, 1944. 2. In this case, show-cause notice was issued on 8.11.06 for the duty f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connection with manufacture or development of software .. . into Software Technology Park Unit or a unit in Software Technology Park Complex under the hundred percent export oriented scheme are eligible for exemption. He submits that in this case, even though the goods were obtained by MTDCC under CT 3 certificate, they were brought to a STP Unit in connection with manufacture or development of software etc. Therefore, he submits that the goods are eligible for exemption. Further, he drew our attention to para 9 of the Notification wherein, it has been provided that the units may be allowed the capital goods obtained by them duty free to be utilized by other units belonging to the owner of procuring unit and located in the same compound or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... segregated. The goods will be installed in a unit and the unit concerned can say that since the unit is not the procurer, they need not fulfill any of the conditions under Notification No.22/03 dated 31.3.03. On the other hand, the procurer who happens to be infrastructure provider in this case would be under no obligation to fulfill any of the conditions of the Notification No.22/03 since it is the unit in whose premises the capital goods are installed and the infrastructure provider being not the owner of the unit nor having any power over the unit would not be able to ensure that the conditions are fulfilled. The bond executed by the procurer will remain only a paper. This would result in a situation where a procurer of capital goods ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 100% EOU is also false . He also further draws our attention to the agreement entered into with the Director of STPI, Pune. In the agreement, in the very first para, the following sentence is found :- An agreement made on this 10th day of March Two thousand & Three between M/s. Magarpatta Township Development and Construction Company Ltd., a 100% export oriented unit . This shows that even before the Director STPI, the appellants projected themselves as 100% EOU. The ld.counsel has submitted that this was only a casual mention and the Asstt.Commissioner in-charge of the Division was the one who had the MOU and all other relevant documents, and therefore, it is not possible that he could not have been aware that the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by MTDCC is for getting capital goods. This is the basic principle enshrined in the Central Excise law that the declaration or information furnished by the appellant has to be accepted. This is because if an assessee makes misdeclaration or suppression of facts which are required to be given by him, the consequences are invocation of extended period of limitation and mandatory penalty under Sec.11AC. Another submission that was made by the ld.counsel was that there was no proper allegation in the show-cause notice. However, we find that in para 6, 7, and 8 of the show-cause notice, there are clear allegations of suppression and how the suppression by misdeclaration has occurred. For convenience, para 6, 7 & 8 of the show-cause notice a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have contravened the provision of Section 11A of the Central Excise Act, 1944 read with conditions under Notification No.22/03 dated 31/03/2003 in as much as they had obtained/procured indigenous capital goods even when they were not eligible for the said procurement since they were only infrastructure providers for STP units situated at Magarpatta city. 6. In view of the above discussions, we find that MTDCC has failed to make out a case either on merits regarding eligibility for exemption nor against invocation of extended time limit. 7. We also take not of the submission made by the learned JCDR that there is no time limit when demand is raised for non fulfillment of conditions accepted in the bond executed. We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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