TMI Blog2015 (3) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the Notification No. 50/03-CE and the goods being manufactured by them was not in the negative list of the exemption notification, the appellant had nothing to gain by clearing the goods clandestinely without reporting to the Department. It is not the allegation of the Department that during the period of dispute, the goods being manufactured by the appellant were some other goods covered by the negative list of the exemption. Beside this, when the appellant's stand from the very beginning is that they had filed required declaration on 18/06/09 under certificate of posting and had enclosed a certificate of the postal authorities in this regard, the Department should have at least made inquiries with the postal authorities, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from that date, the appellant while starting clearances from 18th June 2009, had not filed any declaration and the declaration was filed only on 22/03/10. The Department was, therefore, of the view that the appellant would not be eligible for duty exemption under Notification No. 50/03-CE for the period from 18/06/09 to 21/3/10. It is on this basis that a show cause notice dated 05/07/11 was issued for demand of duty amounting to ₹ 70,54,981/- for the period from 18/06/09 to 21/3/10 alongwith interest thereon under Section 11AB of Central Excise Act, 1944 and also for imposition of penalty under Section 11AC of Central Excise Act, 1944. The show cause notice was adjudicated by the Commissioner vide order-in-original dated 07/10/13 by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had sent the same through post under certificate of posting, that they had also enclosed a copy of the postal authority s receipt regarding despatch of the declaration under certificate of posting, that the appellant had also filed the quarterly returns for the quarter ending 30th June, 2009, 30th September 2009, 31st December, 2009 and 31st March 2010 in terms of Rule 12 of the Central Excise Rules, 2002, that even if the Department did not receive the declaration dated 18/06/09 sent by the appellant to the Jurisdictional Assistant Commissioner under certificate of posting, the Department cannot deny the receipt of the quarterly returns of the quarters, as mentioned above, and therefore the duty exemption under Notification No. 50/03- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot sustainable and as such the appellant have strong prima facie case in their favour and, therefore, the requirement of pre-deposit of duty demand, interest and penalty may be waived for hearing of the appeal and recovery thereof may be stayed till the disposal of the appeal. 4. Shri Ranjan Khanna, the learned DR, opposed the stay application by defending the impugned order by reiterating the findings of the Commissioner and pleaded that though the appellant claim that the necessary declaration for availment of exemption Notification No. 50/03-CE had been filed by them under their letter dated 18/06/09 sent to the Assistant Commissioner under certificate of posting, this letter has never been received by the Assistant Commissioner offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been alleged that the appellant had mis-stated the relevant facts with intent to evade the payment of Central Excise duty, that they were clearing their goods since 18/06/09 clandestinely and evading the Central Excise duty on the clearance made during the period under reference and that they have suppressed the material fact of manufacturing and subsequent clearing the goods with intent to evade the payment of Central Excise duty and thus have invited invocation of extended period of limitation under proviso to Section 11A (1) of Central Excise Act, 1944 and would be liable for penal action under Section 11AC. Thus, the show cause notice would survive only if the extended limitation period under proviso to Section 11A (1) can be invoked, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of denial of exemption. The show cause notice for demand of duty was issued only on 08/07/11 and as such this show cause notice has been issued beyond the normal limitation period of one year from the relevant date. In these circumstances, the Department s allegation that the appellant had suppressed the relevant facts from the Department with intent to evade the payment of duty is difficult to accept. Moreover, when the appellant s unit was located in the area specified in the Notification No. 50/03-CE and the goods being manufactured by them was not in the negative list of the exemption notification, the appellant had nothing to gain by clearing the goods clandestinely without reporting to the Department. It is not the allegation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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