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TMI Blog2007 (9) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... r the above period in respect of the chips of amorphous grade manufactured and cleared by them to DTA, by invoking the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act, and also proposed penalties on the noticee under Section 11AC of the Act and under Rule 173Q of the Central Excise Rules, 1944. The proposals in the show-cause notice were contested on merits as well as on the ground of limitation. In adjudication of the dispute, learned Commissioner of Customs (Imports) confirmed the above demand of duty against the party under Section 11A(2) of the Act and imposed on them a penalty of Rs. 72,00,000/- under Rule 173Q ibid. The present appeal is directed against the decision of the Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/95-CE. He has particularly emphasised the amendment brought to that Notification by Notification No. 7/96 dated 1-7-1996. whereunder the text of the third proviso was amended. Prior to the amendment, the relevant part of the proviso was reading as under :- "Provided also that - (i) in the case of said goods, other than software, rejects, scrap, waste or remnant, (a) such goods being cleared for home consumption are identical in all respects with the goods exported or expected to be exported from the unit during a specified period for such clearance in terms of the Export and Import Policy, 1st April, 1992 31st March, 1997;" The amending Notification substituted the following text for the words "identical in all respects", - "id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble into articles. Learned counsel has also relied on the Chemical Examiner's report (Page No. 85 of Paper Book), which says that "Amorphous and Crystalline Polyester chips are similar in characteristics, though the amorphous variety forms as an intermediate". The Chemical Examiner's report further says that the two grades are similar but not identical. Learned JDCR has heavily relied on this last part of the Chemical Examiner's report, which says that the Crystalline and Amorphous Grades of Polyester are not identical, though similar. It is his case that, for the 100% EOU to be able to clear the Amorphous Grade to DTA in terms of Notification No. 2/95-C.E., it should be shown that the Commodity is identical to the Crystalline Grade, for wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure, one had crystalline shape and the other had no definite shape in the language of Crystallography. Obviously, thus, the difference was physical. Again, it is not in dispute that both the grades, can be used for making articles of the polymer. It would thus appear that the Crystalline Grade and the Amorphous Grade are commercially interchangeable and, if that be so, the two are squarely coming within the ambit of the amended proviso (amended with effect from 1-7-1996) in Notification No. 2/95- CE. This provision of the Notification obviously did not attract the attention of the learned Commissioner. We note that the Board's circular was issued prior to the relevant amendment to Notification No. 2/95-CE. and, therefore, anything contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities also. The Shipping Bills, being documents filed by the party, were tantamount to disclosure of the material fact to the department. There was no suppression. Hence the extended period of limitation was not invocable on the facts of this case. 4. Without prejudice to other contentions, the appellants have also raised a valid challenge against the penalty imposed on them under Rule 173Q. As rightly pointed out by learned counsel, Rule 173Q contained in Chapter VI of the erstwhile Central Excise Rules, 1944 was not applicable to EOUs whose removals of excisable goods for home consumption were covered by Chapter VA of the said Rule, a legal position since settled by a plethora of decisions, a few of them being cited below :- (i) De ..... X X X X Extracts X X X X X X X X Extracts X X X X
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