TMI Blog2015 (2) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... ollusion with the Respondent company and had collaborated with the Respondent in evasion of duty. There is no infirmity in the Commissioner's order holding that the longer limitation period is not applicable. Once this finding is upheld, there would be no question of demanding interest under section 11AB, as during the period of dispute, interest under Section 11AB on the duty non levied, short levied, short paid or erroneous refunded was linked with the fact as to whether non-levy, short levy, short payment or erroneously refunded of the duty was in account of any fraud, wilful misstatement, suppression of facts etc., on the part of the assessee. When these elements are not there, the interest under section 11AB cannot be charged. Since, the elements for imposing longer limitation period are not present, in our view, there would be no justification for imposition of penalty on the General Manager and Directors of the appellant company under Rule 209-A as, for this purpose, there has to be evidence on record to show that these persons dealt with certain excisable goods in the manner specified in this rule while knowing that the goods are liable for the confiscation, while i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of sub para (a), (b), (c), (d) or (f) of para 9.9 or para 9.20 of the Foreign Trade policy for 1.4.1997 to 31.03.2002 period. 1.2. In this case there is no dispute that the rate of excise duty on the spun silk yarn manufactured in DTA was nil and the spun silk yarn manufactured by the respondent was manufactured wholly out of indigenous raw material. Therefore, if, the respondent were eligible for notification No. 13/98-CE dated 02.06.1998, their duty liability would be 30% of the duties of Customs. However, in this case the respondent, except for three clearances, in rest of the clearances did not pay any duty whatsoever for which the respondents explanation is that they were under impression since that the spun silk yarn manufactured in DTA is fully exempt from duty, the DTA clearances by them would also be fully exempt from duty. The Departments case against the appellant is that firstly DTA clearances would be liable for duty in terms of proviso to Section 3(1) of central Excise Act, 1944 and as such the duty chargeable would be the aggregate of the duties of Customs, chargeable on import of like goods into India and for this purpose, it is not relevant as to whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of their DTA clearances, in question, without the benefit of notification Non 13/81-CE has held that the longer limitation period under proviso to section 11(A)(1) would not apply as the DTA Clearances being made by the respondent, were fully within the knowledge of the department and not only this, the invoices under which DTA Clearances were made, bear the signature of the Central Excise Officers, and that just because the ER-2 returns were not filed, the respondent cannot be accused of having committed a fraud or having indulged in willful misstatement or suppression of facts with intend to evade the payment of duty. He also treated the price realised by the respondent from the DTA sale of the goods as cum duty price and permitted abatement of excise duty for determining the assessable value. The Commissioner, accordingly, confirmed the duty demand of only ₹ 43,11,925/- which was within the normal limitation period and imposed penalty of only ₹ 10,00,000/- on the respondent company. He did not order recovery of interest under section 11AB but ordered interest under section 11AA as the same stood during that period. He also did not impose penalty on the Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that the respondents were liable to pay duty in respect of their DTA clearances without the benefit of exemption no. 13/98-CE. Thus, so far as the duty demand is concerned, the dispute remains only on the question of limitation - whether longer limitation period under proviso to section 11A(1) is applicable or the demand can be confirmed only for the normal limitation period and this is what has been challenged in the Revenues Appeal. However, we find that the Commissioner while holding that only normal limitation period of one year from the relevant date would be applicable and longer limitation period under proviso to Section 11AC, cannot be applied, has taken note of the facts that .- a) The DTA sales invoices bear the signatures of the Central Excise Officers indicating that the departmental officers knew that the DTA sales were being made at nil rate of duty and, b) The Respondent Company had written to the Department that they intend to clear the goods into DTA on payment of applicable duty which in their case is nil. 4.1. These facts are not disputed in the order issued by the Committee of Chief Commissioners. Once it is accepted that the respondent under their ..... X X X X Extracts X X X X X X X X Extracts X X X X
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