TMI Blog2017 (1) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... cation 9/2003-CE dated 01.03.2003 only clearances made for home consumption is covered and not the exported goods. Appeal allowed - decided in favor of assessee. - E/57/2008-DB - 20021/2016 - Dated:- 5-1-2017 - Shri S. S. Garg, Judicial Member And Shri V. Padmanabhan, Technical Member Shri B.N. Gururaj, Advocate For the Appellant Smt Ezhil Mathi, AR For the Respondent ORDER Per S. S. Garg The present appeal is directed against the impugned order dated 29.11.2007 passed by the Commissioner (Appeals) vide which the Commissioner (Appeals) rejected the appeal of the appellant and upheld the Order-in-Original. Briefly the facts of the case are that the appellant is a partnership firm and engaged in the manufacture o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with interest and penalty. Aggrieved by the said order, appellant filed an appeal before the Commissioner and the Commissioner rejected the appeal and upheld the order of the Assistant Commissioner. Aggrieved by the said order, the present appeal has been filed. 2. Heard both the parties and perused the records. 3. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same is rendered in disregard of the binding judicial precedents. He further submitted that the entire demand itself is time-barred as the export took place between the period July 2004 to December 2004 and its clearances have been disclosed in their periodical returns filed with the Department. He further submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to enter finding as to how the export value is includible in the first clearances of ₹ 100 lakhs if the exports are effected on payment of duty under rebate claim. In support of his claim, the learned counsel relied upon the following decisions: (i) U.V. Laboratories Vs. CCE, Thane-II 2012 (276) E.L.T. 266 (Tri.-Mumbai) (ii) S.V. Mestry Engg. Works Vs. CCE, Mumbai 2015 (329) E.L.T. 539 (Tri.-Mumbai) (iii) Polo Singh Co. (Industry) Vs. Collector of C.EX., New Delhi 1999 (108) E.L.T. 416 (Tribunal) 4. On the other hand the learned AR reiterated the findings of the impugned order and submitted that as per the Notification 9/2003-CE dated 1.3.2003 the export turnover cannot be excluded for the purpose of first clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned the relevant provisions with intent to evade the payment of excise duty, nor is this a necessary inference upon the facts alleged. The extended period is, therefore, unavailable. The notice being out of time, the order under appeal must be upheld. 6. Further we also find that on merit also the demand is not sustainable because under the SSI Exemption Notification 9/2003-CE dated 01.03.2003 only clearances made for home consumption is covered and not the exported goods and the same has been upheld by the judgments cited supra. Therefore, keeping in view the submissions of both the parties and the judgments cited supra, we are of the considered opinion that the impugned order is not sustainable in law and the entire demand is time-ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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