TMI Blog2013 (10) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... – Cum-Duty Benefit - Held that:- Neither the longer limitation period would be invokable under proviso to Section 11A(1) nor penalty under Section 11AC would be imposable - Assesse cannot be accorded of suppressing the relevant facts from the Department, more so, when the exemptions certificates had been countersigned – AMRIT AGRO INDUSTRIES LTD. Versus COMMISSIONER OF C. EX., GHAZIABAD [2007 (3) TMI 14 - SUPREME COURT OF INDIA] - As regards the cum-duty benefit assesse had cleared the goods by availing full duty exemption under Notification No. 108/95-C.E - there was no justification for abatement of the duty which had not been paid at all. Penalty under Rule 26 - Held that:- The penal provisions of Rule 26 were not attracted and the Commissioner’s order imposing penalty was not sustainable - just because the same project had not availed of the exemption under Notification No. 108/95-C.E. it cannot be concluded that they had knowledge about the fact that JBIC was not an International Organization - Order modified. - E/196 and 1818/2006 - A/1311-1312/2012-EX(BR)(PB) - Dated:- 6-11-2012 - Ajit Bharihoke and Shri Rakesh Kumar, JJ. Shri Mayur Shroff, Advocate and T.J. Rao, C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , certificate issued by the Executive Head of the Project Implementing Authority and countersigned by the Principal Secretary or the Secretary (Finance), as the case may be, in the concerned State Government is required to be produced certifying that the goods are required for execution of the said project and that the said project has been approved by the Government of India for implementation by the said State Government. In terms of definition of International Organizations, as given as International Organisation in this notification, this term means an International organization which the Central Government has declared in pursuance of Section 3 of the United Nations (Privilege Immunities) Act, 1947 as the organization to which the provisions of the schedule to the said Act shall apply. In this case, the project being implemented by APTRANSCO was financed by Japan Bank International Corporation (JBIC) and certificates issued by the Project implementing Authority (APTRANSCO) had been countersigned by Secretary (Institutional Finance) Govt. of A.P. for duty free clearance had been produced. 1.2 Subsequently, on 7-12-2001, the Central Board of Excise Customs issued a lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his regard signed by the Project implementing authority (APTRANSCO) and countersigned by the Secretary to the Government of Andhra Pradesh had been produced, that it is only subsequently that M/s. Jyoti came to know that JBIC is not international organization in terms of the clarification issued by C.B.E. C. in this regard, that immediately thereafter, M/s. Jyoti stopped making the duty free supplies to APTRANSCO, that before availing the exemption under Notification No. 108/95-C.E., the appellant had filed the required declaration with the jurisdictional Central Excise Authority in this regard, that the jurisdictional Central Excise Authorities vide letter dated 14-5-2001 had allowed them to clear the goods by availing duty exemption under Notification No. 108/95-C.E., that in view of this position, even if it is held that M/s. Jyoti are not eligible for exemption, the longer limitation period under proviso to Section 11A(1) would not be available to the department and accordingly, the duty demand of Rs. 86,12,753/- raised vide show cause notice dated 23-5-2003 for the period from August, 2000 to December, 2001 would be totally time-barred, that in the circumstances of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed and that mala fide of the Appellants is clear from the fact that APTRANSCO had not sought exemption under this notification in respect of certain goods procured for the same project from BEHL. She, therefore, pleaded that there is no infirmity in the impugned order. 6. In rejoinder, Shri Rao stated that in respect of supplies from BHEL, though the required certificate for exemption under Notification No. 108/95-C.E. had been issued, BHEL had not availed of the exemption and from this it cannot be presumed that APTRANSCO had knowledge that JBIC is not an international organisation. 7. We have considered the submissions from both the sides and perused the records. 8. Exemption Notification No. 108/95-C.E. exempts the goods supplied to United Nations or International Organizations for their official use or supplied to the project financed by the said United Nations or International Organizations which have been approved by the Government of India, from the whole of the duty of excise subject to certain conditions specified therein. The term International Organization , as defined in Explanation to the notification means an International Organization which the Central Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the show cause notice for demand of duty amounting to Rs. 1,73,66,739/- in respect of the clearances made during the period from Feb. 2001 to Jan. 2002 had been issued to 1-3-2012. Thus, while show cause notice dated 1-3-2002 for the period from 18-2-2001 to 20-1-2002 is within time, the show cause notice dated 23-5-2003 for the period for demand of duty amounting to Rs. 86,12,754/- for the period from August, 2000 to December, 2001 would be within time only if the proviso to Section 11A(1) can be invoked. The Commissioner has confirmed this demand by invoking proviso to Section 11A(1) holding that M/s. Jyoti had suppressed the relevant facts from the department. However, we are of the view that this finding of the Commissioner is contrary to the facts on record, as the appellant before starting the duty free clearances to Simhadri project had intimated to the department vide their letter dated 23-5-2001 and in response to this declaration made, the jurisdictional Superintendent vide letter dated 14-5-2001 had informed them that the duty free clearances to APTRANSCO being made by them would be eligible for exemption under Notification No. 108/95-C.E. In the letter dated 23-3-2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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