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TMI Blog2015 (3) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... adesh and during the period of dispute they were availing of exemption under Notification No. 50/03-CE. Their first clearances by availing full duty exemption under Notification No. 50/03-CE were made from 18/06/09. According to the Department while for availing the exemption under Notification No. 50/03-CE, a declaration in the prescribed format mentioning date from which the exemption is to be availed is required to be filed and the exemption would be available only 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this plea was not accepted by the Commissioner. 2. Against the above order of the Commissioner, this appeal has been filed alongwith stay application. 3. Heard both the sides in respect of stay application. 4. Shri Rajesh Jain, Advocate, the learned Counsel for the appellant, pleaded that firstly, the appellant while starting their clearances from 18/06/09, had filed the declaration on the same day to the Jurisdictional Assistant Commissioner 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, 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was dismissed by the Commissioner (Appeals) vide order-in-appeal dated 13/08/12, appellant filed an appeal to the Tribunal against Commissioner (Appeals) s dated 13/08/12 which is still pending before the Tribunal, that in this background, the show cause notice dated 05/07/11 for demand of duty amounting to Rs. 70,54,981/- for the period from 18/06/09 to 21/3/10 is time barred and that in view of the above submissions, the impugned order is not 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; this is not the case for waiver from the requirement of pre-deposit. 5. We have considered the submissions from both the sides and perused the records. 6. The show cause notice dated 08/07/11 for demand of duty for amounting to Rs. 70,54,981/- for the period from 18/06/09 to 21/3/10 has been issued by invoking extended period under proviso to Section 11A (1) of the Central Excise Act, 1944. This is clear from para 8 of the show cause notice, wherein it has 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 referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the appellant company and the fact of availment of exemption Notification No. 50/03-CE and at least from July 2010 was of the view that the appellant would not eligible for exemption under this notification for the period from 18/06/09 to 21/3/10. There is no explanation as to why at that stage, the show cause notice for demand of duty for this period i.e. for period from 18/06/09 to 21/3/10 was not issued and the show cause notice was confined only to the question 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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