TMI Blog2013 (5) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Apex Court and the Apex Court on identical set of facts has upheld the order of the Tribunal [2008 (4) TMI 43 - SUPREME COURT] - Decided in favor of assessee. - C/230/2007 - A/905/2012-WZB/AHD - Dated:- 13-6-2012 - S/Shri M.V. Ravindran, B.S.V. Murthy, JJ. REPRESENTED BY : Shri Anand Nainawati, Advocate, for the Appellant. Shri J.S. Negi, AR, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. This appeal is directed against the order-in-original No. KDL/COMMR/25/99, dated 11-8-1999. 2. The relevant facts that arise for consideration are the appellant herein had imported various consignments/goods of HDPE granules/PP granules during the period December 1992 availing the benefit of Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation of the demand is under Section 28 of the Customs Act, 1962 for the violation of the conditions of Notification No. 203/92-Cus. It is his submission that according to the adjudicating authority the said imports were made in the month of December 1992 and show cause notice dated 19-8-1997 to the appellant which they strongly denied. It is his submission that they did not receive any show cause notice dated 19-8-1997. It is his submission that the demand is barred by limitation as there is no allegation of suppression of facts and the said show cause notice is not served on the appellant within the period as indicated in Section 28 of the Customs Act, 1962. It is his submission that the above said proposition has been settled by the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der claiming the benefit of Notification No. 203/92. Be that as it may, we find that the imports which were made by the appellants during the month of December 1992 and that there is no show cause notice on record, from the order-in-original, we find that the said show cause notice was issued on 19-8-1997, while there is no specific allegation as to how the appellant had deliberately suppressed the fact regarding availment of Cenvat credit on the modvat inputs used in the manufacture of exported products. If the allegation of suppression has to be invoked as per the provision to Section 28 of the Customs Act, 1962, it is to be brought on record how the appellant had suppressed. It is also on record that the appellant had not made any declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uts and hence is not eligible for the benefit of Notification No. 203/92 as per the condition No. V(a) of the said notification. There is nothing on record to indicate that the appellant had availed the Cenvat credit of the inputs/capital goods for the manufacturing of the goods which were exported. We find that in an identical situation, this Tribunal in the case of Auto Ignition Ltd. has held that evidence has to be brought on record by the department to refute the claim that no modvat credit has been availed by the appellants on inputs as well as capital goods. This judgment was carried in appeal by the Revenue before the Apex Court and the Apex Court on identical set of facts has upheld the order of the Tribunal by recording the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal that it had not availed of Modvat credit regarding imported inputs and that it had availed of the same for the input/raw material purchased from the local market. Learned members of the Tribunal afforded an opportunity to the departmental representative to verify this aspect. Departmental representative, on the adjourned date of hearing, stated before the Tribunal that he had not received any answer from the Commissioner concerned, despite correspondence addressed to him and personal efforts made by him. On the making of this statement, the Tribunal came to the conclusion that the assessee had not availed of the Modvat credit on imported inputs/raw material and in the absence of any material to show that the assessee had availe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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