TMI Blog2014 (6) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured and cleared by availing of this exemption. Had at least such returns been filed, the department would have been in a position to know about their activity. In view of this, we are of prima facie view that the appellant’s plea that they had acted bona fide is difficult to accept. In any case, the question of limitation being a mixed question of fact and the law can be examined in depth only at the time of final disposal. - Conditional stay granted. - E/876-877/2012 - Stay Order Nos. 1594-1595/2012-EX(BR)(PB) - Dated:- 19-9-2012 - Justice Ajit Bharihoke, President and Shri Rakesh Kumar, Member (T) Shri Anil Sood, Advocate, for the Appellant. Shri I. Baig, DR, for the Respondent. ORDER The appellant manufacture multi layer poly film printed as well as non-printed chargeable to Central Excise duty under sub-heading No. 3921.90.99 of the Central Excise Tariff. Their unit is located in the State of Uttranchal. The period of dispute in this case is from 20th May 2006 to 13th March 2008. During this period, the appellant company was availing the duty exemption under Notification No. 50/2003-C.E. and had cleared the goods manufactured by them without paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption, they are required to file a declaration containing information, as prescribed in the first para of the exemption Notification No. 50/2003-C.E., they filed the same on 14-3-2008, that filing of declaration is a procedural requirement and, hence, during the period from May 2006 to 13-3-2008, the benefit of this exemption cannot be denied just for not filing of the declaration when there is no dispute that the appellant were otherwise eligible for benefit of this exemption, that in any case, the duty demand raised by show cause notice dated 31-3-2011 for the period from 20th May 2006 to 13-3-2008 is time barred, as it is the appellant who by filing the declaration on 14-3-2008 had intimated the department about their activity and their intention to avail of this exemption and while in 2009 the department had conducted some inquiries by recording the statement of various persons of appellant company the show cause notice was issued only on 31-3-2011, that in the circumstances of the case the allegation of wilful suppression of facts with intent to evade payment of duty cannot be made against the appellant, that the entire duty demand is, therefore, time barred, that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the case for waiver from the requirement of pre-deposit. 5. We have considered the rival submissions. 6. The Notification No. 50/2003-C.E. exempts the goods specified in the first and second Schedule to the Central Excise Tariff Act, 1985, other than those specified in Annexure-I to this notification and manufactured in the industrial areas specified in Annexure-II to the notification from the whole of the duty of excise leviable under Section 3(1) of Central Excise Act, 1944 and the whole of the Additional Duty of Excise leviable under Additional Duty of Excise (Goods of Special Importance) Act, 1957 and also under the Additional Duty of Excise (Textiles and Textile Articles) Act, 1978, subject to the following conditions :- (i) the manufacturer who intends to avail exemption under this notification shall exercise his option in writing before effecting the first clearance and his option shall be effective from the date of exercise of option and shall not be withdrawn during the remaining part of the financial year; (ii) the manufacturer shall while exercising the option under condition (1) shall inform in writing to the Jurisdictional Deputy Commissioner or Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a necessary information to enable the Jurisdictional Central Excise officers to ascertain as to whether the appellant is eligible for exemption of this notification or not, as this exemption is available only in respect of the goods other than those specified in Annexure-I to this notification and manufactured in the units located in the industrial areas as specified in Annexure-II to the notification. Similarly, if a manufacturing unit wants to avail of this exemption notification by claiming that it falls in the category described in para 2(b) of the notification on the basis that it has undertaken substantial expansion by way of increase in the installed capacity by not less than 25% on or after 7th January 2003 and has commenced commercial production from such extended capacity not later than 31-3-2010, the filing of declaration by the assessee becomes important to enable the department to ascertain as to whether the unit is eligible for exemption or not. Thus filing of declaration in terms of the condition prescribed in para 1 of the notification is not an empty formality. The Apex Court in the case of Indian Aluminium Company Ltd. v. Thane Municipal Corporation reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
