TMI Blog2007 (9) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... Tariff Area (DTA, for short) by availing exemption under Notification No. 2/95-CE. dated 4-1-1995 (as amended). In a show-cause notice dated 24-4-2001, the Commissioner of Central Excise demanded duty of Rs. 81,90,568/- from the appellants for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same class as, the goods of export were allowed to be sold in DTA and consequently the benefit of the above Notification was not admissible to it. Learned counsel for the appellants has brought to our notice certain amendments to Notification No. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able on Page No. 87 of the Paper Book. In this connection, he has also relied on a US patent relating to "Apparatus for injection moulding articles of Amorphous Polyethylene Terephthalate" (Polyester) which says that Amorphous Grade is also injection mouldable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner's permission. It was enough if the two goods had like characteristics and like component materials which enabled them to perform the same functions and to be commercially interchangeable as reported by the Chemical Examiner. As denoted by the nomenclature, 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 Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground of suppression of material facts. The shipping Bills reveal that the Customs authorities were aware of the fact that the EOU was exporting both the grades of Polyester chips under the Development Commissioner's permission. The exports were cleared by the authorities 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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