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2015 (10) TMI 512 - CESTAT NEW DELHI

2015 (10) TMI 512 - CESTAT NEW DELHI - TMI - Area based exemption - Denial of benefit under Notification No. 50/2003-CE - Imposition of interest and penalty - Invocation of extended period of limitation - Held that:- In this case it is admitted fact that on 15th July, 2009 the appellant filed a declaration for claiming of benefit of exemption Notification No. 50/2003-CE with effect from 27th February 2008 onwards and thereafter show cause notice has been issued by invoking extended period of lim .....

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(Technical), JJ. For the Petitioner : Shri B.L. Narasimhan, Advocate For the Respondent : Shri Pramod Kumar, Authorized Representative (Jt. CDR) ORDER Per. Ashok Jindal :- The appellant is in appeal against the impugned order denying benefit under Notification No. 50/2003-CE during the period 27th February 2008 to 14th July, 2009. The appellant set up a New Industrial Unit in Nalagarh, Himachal Pradesh and commenced commercial production on 27th February, 2008. At that time setting up of their c .....

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ommercial production they are entitled to benefit of Notification No. 50/2003-CE. In these certain facts a show cause notice dated 19th April, 2011 was issued to the appellant to deny benefit of exemption Notification No. 50/2003-CE. The Adjudicating Authority denied the benefit of exemption notification and consequently demanded excise duty alongwith interest and penalty was also imposed. Aggrieved with the said order appellant is before us. 2. The learned Counsel for the appellant submits that .....

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knowledge of the Department that the appellant is going to start commercial production in November 2007 and that these set of facts the Revenue was having knowledge that appellant has set up a industrial unit and not paying duty which means that appellant is claiming benefit of Notification No. 50/2003-CE. He further submits that as appellant has filed declaration for claiming exemption under Notification No. 50/2003-CE on 15th July, 2009 and thereafter show cause notice has been issued by invok .....

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and submits that as the appellant has not filed mandatory declaration to claim the exemption under said notification, therefore, appellant is not entitled to claim exemption under Notification No. 50/2003-CE in the light of the decision of the Hon ble Supreme Court in the case of CCE, New Delhi vs. Hari Chand Shri Gopal reported in 2010 (260) E.L.T. 3 (S.C.). 3. Heard the parties. In this case it is admitted fact that on 15th July, 2009 the appellant filed a declaration for claiming of benefit .....

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11 for the period 20/05/2006 to 13/03/2008 invoking the extended period of limitation. In terms of Section 11A of the Central Excise Act, 1944, the extended period is available to the Revenue in case duties have not been paid by reason of fraud, suppression or any willful mis-statement with intent to avail payment of duty. When the appellant was not required to pay any duty, if they would have exercised their option in writing, where is the question of malafide intention to evade payment of duty .....

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