9911796707
TMI Blog2013 (7) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... iled against the order in original No.1/BVR/Commissioner/2013 dated 08.01.2013, passed by Commissioner of Central Excise, Bhavnagar confirming a demand of Rs.4,86,65,605/- against the first appellant along with interest under Section 11AB (Section 11AA of the Central Excise Act, 1944). Penalty of Rs. 4,86,65,605/- has 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Shri P.M. Dave, learned advocate of the appellants, argued that the first appellant is debonded the goods with effect from April 2011. Differential duty of Rs. 1,33,22,958/- demanded in show cause notice dated 14.12.2011 was paid in Oct and Nov 2011, before the issue of show cause notice. It was his argument that corrigendum dated 18.6.2012 issued for F. NO. DGCEI/AZU/36/142/2011-12, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bond is executed by an 100% EOU. 6. After hearing both sides at length, it is observed that the stay application filed by the first appellant has raised two issues. The first is that the corrigendum dated 18.6.2012 issued for the period 06.7.2007 to April 2011 is hit by limitation as the same has changed the very basis of show cause notice dated 14.12.2011. The second issue raised 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for the supplies made to them. The claim by the first appellant now before the CESTAT that GHCL could have availed deemed export facility under other paragraphs of Chapter 8, does not appear to be prima facie acceptable, when such a stand was not taken before the investigation and the original adjudicating authority. Further, the only other Para of deemed export category is 8.3(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 establishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general bond with the department binding them to discharge duty liability promptly on being pointed out. As the rates of duty keep on changing during the obligation fulfilling period, therefore, the assessments when read with the B-17 bond period will be a case of provisional assessment made under Rule 7 of the Central Excise Rules, 1944. Further, learned AR, relied upon the case of 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 bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
