TMI Blog2013 (6) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... each of the goods exported by the assessees vis-à-vis the DTA clearances made on payment of concessional rate of duty for a long period of five years. Therefore, the findings recorded by the CESTAT that the Central Excise officers receiving the Returns had all the information to enable him to verify the facts is, therefore, correct and cannot be termed as perverse so as to warrant any interference at our ends. The conclusion arrived at by the CESTAT that the demand was time-barred and the Revenue cannot invoke the extended period of limitation in this case is not based on mere assumptions or presumptions but is based on the conclusion arrived at after considering the documentary evidence on record including ER-2 Returns and Central Excise invoices of the assessees. Whether there was any fraud or collusion or wilful mis-statement or suppression of facts or contravention of any provision of any Act, would be a question of fact depending upon the facts and circumstances of a particular case. In exercise of powers under Section 35G of the Act, a pure question of fact cannot be disturbed except on the ground of perversity. - Decided against the revenue. - Tax Appeal Nos. 854 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the vital facts that they have crossed their eligible limit of clearance of their goods in DTA, as provided under para 6.8(a) of the Foreign Trade Policy 2004-09, read with the Notification No. 23/2003-C.E., dated 1-3-2003? (b) Whether in the facts and circumstances of the case and in law, the Hon ble CESTAT was justified in holding that no evidences were brought out to show that the returns were incomplete, even when the relevant information regarding product-wise details were not submitted by the assessee in their E.R. 2 returns, and which were submitted only during the course of investigation. (c) Whether in the facts and circumstances of the case and in law, the Hon ble CESTAT was justified in not discussing and not passing any orders in respect of demand of short-payment of Education Cess. 6. In Tax Appeal No. 854 of 2010, the Revenue has raised the following questions of law : (i) Whether in the facts and circumstances of the case and in law, the Hon ble CESTAT was justified in holding that the extended period is not sustainable in this case, as they have already taken a view in the other case that extended period is not invokable. (ii) Whether in the facts and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s permission issued by the Development Commissioner. Accordingly, the respondents sold various quantities of dyes as well as agro-chemicals on payment of concessional rate of excise duty during the period from 2004-05 to 2008-09. It is the case on behalf of the assessees that all the details of the total quantities of goods manufactured in a month, the goods exported during the month, the goods cleared by way of deemed exports i.e. sold to other EOUs and the goods cleared in DTA were submitted on monthly basis by filing Returns in form ER-2 prescribed under Rule 17(3) of the Central Excise Rules, 2002 and Rule 9(7) of the Cenvat Credit Rules, 2004. These details were submitted at Clause 3 of the Returns. For DTA clearances, the Notification number i.e. 23/2003 and also the Serial Number 2 of the Notification under which concessional rate is allowed were also shown under Clause 4A of the ER-2 Returns. Further, details of all the Central Excise invoices with their number were also submitted at the end of the Returns, and copies of these invoices under which DTA clearances were made on payment of concessional rate of excise duty were also submitted with the Returns. No objection was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d composition) was permitted to be sold in DTA at concessional rate of duty under Notification No. 23/2003 and similar is the case so far as agro-chemicals are concerned i.e. if a particular type of insecticide/pesticide was exported during the financial year, then 50% quantity of only that insecticide/pesticide to be sold in DTA at concessional rate of excise duty. The Revenue worked out a figure of total export of a particular variety of dye and a particular kind of insecticide/pesticide for each of the financial year during the above period and raised demand of excise duty for those dyes and insecticides/pesticides which, according to the Revenue, were not of the same kind and nature. 14. The assessees case all throughout appears to be that all dyes were goods of a kind and when the Development Commissioner being the monitoring agency for EOUs had also permitted DTA sales for dyes (without specifying the varieties or colour or composition) it was within their right to sell in DTA any dyes regardless of the colour or composition because all dyes were in the nature of similar goods as contemplated under Notification No. 23/2003-C.E., and for agro-chemicals too, it was the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld give an impression that department has accepted that VAT dyes, OBA and solvent dyes form distinct categories. There is no finding as regards agro-chemicals which are similar and if they are not similar why they are not similar. Commissioner has to consider all these facts and give finding on the issues. Therefore, we remand the matter to the Original Adjudicating Authority, who shall consider in respect of each item the eligibility in DTA and also which meaning of similar goods to be adopted. We have already held that extended period cannot be applied. Appellants are to be given proper opportunity to present their case before the final decision is taken. 17. In the same manner, the Tribunal, while deciding Appeal No. E/1296/2009 (Tax Appeal No. 854 of 2010), took the following view : Appellant is a 100% EOU and in terms of para 6.8 of Foreign Trade Policy and Exemption Notification No. 23/2003-C.E., dated 31-3-2003, they are permitted to clear 50% of dye quoted quantity into domestic tariff area. In terms of these provisions appellants were engaged in the manufacture of different types of dyes, made clearances. The department has taken a view that such clearances should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him. 18. Bare perusal of the orders passed by the Tribunal would suggest that the CESTAT, while remanding the case, considered the documents submitted by the assessees to the Central Excise officers for DTA sales and found that the assessees had submitted Returns showing exemption notification availed by them and, therefore, there was no suppression or misdeclaration on their part, as the Central Excise officers who received the Returns were able to verify and confirm whether the clearances were in terms of the notification or not. The CESTAT also appears to have taken the view that there was no evidence adduced by the Revenue to show that the Returns/documents/declarations were incomplete or facts were suppressed or misdeclared. Since the Central Excise invoices were also produced by the assessees, the officers were obliged to verify them and, therefore, it was not permissible to the Revenue to contend that there was no requirement for an EOU to submit invoices and the departmental officers were not obliged to verify such invoices. The Appellate Tribunal also seems to have taken the view referring to the documentary evidence that the demand could be upheld only for a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icy; (b) the total value of such goods being cleared under sub-paragraphs (a), (b), (d) and (h) of paragraph of the Export and Import Policy, into Domestic Tariff Area from the unit does not exceed 50% of the Free on Board value of exports made during the year (starting from 1st April of the year and ending with 31st March of next year) by the said unit; (c) the balance of the production of the goods which are similar to such goods under clearance into Domestic Tariff Area, is exported out of India or disposed of in Domestic Tariff Area in terms of paragraph 6.9 of the Export and Import Policy; (iii) clearance of goods into Domestic Tariff Area under sub-paragraphs (a), (b), (d) and (h) of paragraph 6.8 of the Export and Import Policy shall be allowed only when the unit has achieved positive Net Foreign Exchange Earning; and (iv) clearance of goods into Domestic Tariff Area under sub-paragraph (a) of paragraph 6.8 of the Export and Import Policy in excess of 5% of Free on Board value of exports made by the said unit during the year (starting from 1st April of the year and ending with 31st March of the next year) shall be allowed only when the unit has achieved positive Net ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove that the situation visualized by the proviso to Section 11A(1) existed, the burden shifts on the assessee once the department is able to produce material to show that the assessee is guilty of any of those situations visualized in the section. II. Contentions on behalf of the Assessees : 28. Learned advocate Mr. Dave appearing for the assessees submitted that the CESTAT has categorically held in paragraph 4 of the order challenged by the Revenue in Tax Appeal No. 1731 of 2010 that the Returns showing exemption notification availed of by the assessees would indicate that there was no suppression or misdeclaration because the Central Excise officers receiving the Returns would be able to check up whether the clearances were in terms of the notification or not. 29. Mr. Dave submitted that it has also been recorded as findings of fact by the CESTAT that the assessees were not guilty of any omissions which would have prevented the officers to find out the correct case and also that there was no evidence adduced in order to show that Returns/Documents/Decla-rations were incomplete or facts were suppressed. According to Mr. Dave, these findings of fact cannot be disputed unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export and also the quantities of each of the goods cleared in DTA in terms of quantity as well as value have been shown in the Return. Under Clause 4A of the Returns, details of clearances in DTA and deemed export and duty payable are to be disclosed and the excise notification availed along with serial number in the excise notification are also required to be submitted under Clause 4A of the Return. It is not the case of the Revenue that the respondents failed to declare the details and information required under ER-2 Returns and it is also not the case of the Revenue that any information declared under ER-2 Returns was wrong or false. On the other hand, we find that the details like total quantity of goods manufactured in a month with reference to each of the goods, quantities of each of the goods physically exported and quantity as well as value of each of the goods cleared in DTA would enable the Central Excise officers assessing such Returns to easily verify the total quantity of goods manufactured, exported and cleared in DTA. Further, details of excise notification number and also serial number of the notification availed for DTA sales shown at Clause 4A of the Return would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to sub-section 11A of the Act, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, beyond the period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. The Tribunal came to the conclusion that the facts referred to hereinbefore do not warrant any inference of fraud. The assessee declared the goods on the basis of their belief of the interpretation of the provisions of the law that the exempted goods were not required to be included and thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturing Co. (supra) which has been relied upon by the Revenue, the Supreme Court, considered the judgment in the case of M/s. Chemphar Drugs and Liniments (supra). The contention before the Supreme Court on behalf of the assessee, relying on M/s. Chemphar Drugs and Liniments (supra), was that when the manufacturer in the same situation as appellant has revealed certain information in another proceeding and that information is available to the Department, the enlarged period of limitation available under Section 11A of the Central Excise Act cannot be invoked by the Department. Dismissing the appeal of the assessee, the Supreme Court in paragraph 2 clarified as under : ..On the other hand, in a given case whether there is something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, is a question of fact to be established in each case. 39. In the case of Commissioner of Central Excise, Aurangabad (supra), the Supreme Court once again considered Section 11A and held in paragraph 12 as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. IN CIT v. Orissa Corpn. Pvt. Ltd., 1986 (159) ITR 78, it was held by the Apex Court that the conclusion of the Tribunal based on some evidence on which the conclusion can be arrived at, no question of law would arise. In CIT v. Indian Woollen Textiles Mills, 1964 (54) ITR 291, it is held by the Apex Court that it is not open to the High Court to discard the Tribunal s finding on a question of fact, even if on a review to the evidence the Court may arrive at different conclusion. 42. In the case of Commissioner of Central Excise, Chennai-II (supra), the Madras High Court, in paragraph 4 of the judgment, held as under : 4. Under the hierarchy of quasi-judicial authorities, in the Central Excise Act, at the lowest is the Assistant Commissioner against whose orders appeals lie under Section 35 of the Central Excise Act to the Commissioner (Appeals) and, thereafter, a second appeal to the CEGAT under Section 35B. It may be noted that the second appeal to the CEGAT is not like a second appeal under Section 100 C.P.C., since it is not confined to questions of law. Second appeals under different statutes can have different meanings and different scope. A second appeal under Sect ..... 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