TMI Blog2013 (7) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to be made applicable. Held that:- So far as imposition of penalties upon the appellants - it has been prima facie brought out that Appellant had no knowledge of the fact that GHCL were availing deemed export facility under Para 8.3(a) and (b) of FTP. Appellants have thus made out a good case for non imposition of penalties under Rule 25 and 26 of the Central Excise Rules - Aappellant is directed to deposit the entire differential duty liability along with interest. Subject to the payment of above deposit, there shall be stay on the remaining amounts of penalties till the disposal of appeals. Limitation - show cause notice was issued within one year of the date of debonding. - Held that:- Since the PC are a 100% EOU, demands can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also been imposed upon the first appellant under Rule 25 of the Central Excise Rules read with Section 11AC of the Central Excise Act, 1944. A penalty of Rs. 10 Lakhs has been imposed upon the second appellant under Rule 26 of the Central Excise Rules. 2. The issue involved in these stay applications is that the first appellant during the relevant period was working as 100% EOU for which a general B-17 bond was also executed with the department. It appeared to the Revenue after conducting an investigation that first appellant has received raw materials from some units who availed deemed exports facility under paragraphs 8.3(a) and (b) of the Foreign Trade Policy (FTP). It is the case of the Revenue that the first appellant continued to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011-12, enhancing the show cause notice duty amount to Rs. 4,86,65,605/- from the 1,33,22,958/-, is in grave violation of principles of natural justice and has changed the very basis of the show cause notice. The second argument put forth by the first appellant was that demand is hit by limitation and can not be issued by invoking extended period when the appellant has produced all the documents, under which raw materials were received, to the department and that appellants had no knowledge that M/s. GHCL has availed the benefit of deemed export under paragraph 8.3(a) and (b) of the Foreign Trade Policy. Shri P.M. Dave, learned Advocate further argued that it is still not established by the Revenue that 2 DFIA licenses issued in favour of G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed is that as per Para 8.4.2 to 8.4.4 of Chapter 8 of Foreign Trade Policy on Deemed Exports, the benefit under DFIA could also be claimed under Para 8.3(c) of the Foreign Trade Policy. Therefore, investigation has not established beyond doubt that GHCL has availed the benefit of deemed export under Para 8.3 (a) and (b) only under Foreign Trade Policy. On penalties and time bar, it was argued by the appellants that simply mention of a DFIA file on the invoices of a supplier of raw materials, without mentioning Para 8.3 (a) and (b), can not be considered sufficient to invoke extended period and to impose penalties as the appellants at no stage had the knowledge that the suppliers of raw materials were availing benefits of Foreign Trade Poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .3(c) which is reproduced below:- "(c) Exemption from terminal excise duty where supplies are made against ICB. In other cases, refund of terminal excise duty will be given " In view of the above provisions of Para 8.3(c) of Foreign Trade Policy the onus that supplies were made against International Competitive Bidding (ICB) by GHCL has to be established by the first appellant because they were availing the benefit of a concessional rate of duty. Instead of raising any issue of applicability of Para 8.3(c) to GHCL during the investigation they quietly accepted that GHCL was availing deemed export facility under Para 8.3 (a) and (b) of FTP and paid differential duty liability. At the second appellate stage taking an altogether differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Endress + Hauser Flowtec (I) Pvt Limited vs. CCE, Aurangabad (supra) wherein it has been held as follows:- "39. Even otherwise, since the PC are a 100% EOU, demands can be raised as per the provisions of the B-17 bond executed by them. As per this bond, there is no time limit for demanding duty in the case of short payment by an EOU. Though this bond has not been invoked by the Commissioner, while confirming the demand, there are a plethora of judgments to the effect that so long as the proper officer has the power under a particular provision of law, invoking the wrong provision of law for confirming the duty, will not vitiate the demand. [J.K. Steel reported in 1978 (2) E.L.T. J355 (S.C.), Industrial Coating Corporation v. CCE, Mumba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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