TMI Blog2020 (12) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso is not attracted at all. There is no exemption from VAT/Sales Tax but just a deferral of the VAT/Sales Tax liability until the sale takes place. We are in complete agreement with the contention of the Appellant that the Circular cannot curtail the scope of an exemption notification which deserves to be interpreted strictly and on its own terms as held by the Hon‟ble Supreme Court in the Tata Tele Services case [ 2005 (12) TMI 96 - SUPREME COURT ]. The impugned Order in the garb of recovering SAD also seeks to recover the CVD of ₹ 1,99,17,645/- by relying upon the proviso to Section 5A of the Central Excise Act and to that extent does travel beyond the scope of the Notice dated 3 October 2016 - In the present case, the impugned order itself records at para 12.11 that the subject goods as ball pen parts were generally exempted from central excise duty under S. No. 325(ii) of Notification No.12/2012 dated 17 March 2012. Even on the point of limitation the demand has to fail as the BOE‟s were countersigned by the customs official prior to clearance of goods from the Falta, SEZ. Therefore, the department was aware that the goods were cleared by w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The BOEs were duly counter signed by the Customs Officer posted at Falta, SEZ and the blanks were allowed to be cleared with the said exemption. Pursuant to an audit objection from the Customs Receipt Audit Department, proceedings were initiated by a Notice dated 3 October 2016 alleging wrongful availment of SAD exemption by the Appellant in view of para 3 of the Circular No. 45/2013 dated 30 December 2013 and the demand proposed therein has been confirmed vide the impugned Order dated 24 January 2020 by invoking the extended period of limitation. 3. The Learned Advocate appearing for the Appellant has assailed the Order dated 24 January 2020 both on merits as well as limitation on the following grounds: A. Clearance of Blanks from the SEZ unit to the DTA unit in the instant case were in the nature of stock transfers as opposed to sale and such Blanks were also not exempted from the levy of VAT/Sales Tax by the State Government of West Bengal. None of these facts have been disputed by the adjudicating authority but on the contrary stands duly accepted in the OIO‟ itself. Therefore, the proviso to Notification No. 45/2005 was not attracted at all and the SAD e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, in the context of Notification No. 45/2005 itself, the division bench of the Tribunal in the case of Baccarose Perfumes 2014 (301) ELT 691 wherein the exemption was initially allowed but sought to be recovered subsequently; held the invocation of extended period as unjustifiable. Although the normal period of limitation was enhanced from 1 year to 2 years with effect from 14 May 2016 and the Notice in the instant case was issued only thereafter on 3 October 2016, the amendment was not a retrospective one and thus demands which had already become barred by limitation could not get revived by the amendment. Thus the entire demand for the period April 14 to December 14 stood barred by limitation [Refer Aveco Technologies 2018 (362) ELT 624 also maintained by the SC in 2018 (362) ELT A164]. 4. The Learned authorised representative for the Revenue, supports the Impugned Order and reiterates the findings of the Adjudicating Authority. 5. Heard both sides and perused the appeal records. 6. The crux of the issue involved in this case is whether the benefit of Notification No.45/2005 as amended granting exemption from SAD is available in respect of Blanks cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon‟ble Supreme Court in the Tata Tele Services case (supra). 7. We also find that the impugned Order in the garb of recovering SAD also seeks to recover the CVD of ₹ 1,99,17,645/- by relying upon the proviso to Section 5A of the Central Excise Act and to that extent does travel beyond the scope of the Notice dated 3 October 2016. Even otherwise the demand for CVD can sustain in view of the decision of the Gujrat High Court in Roxul Rockwool case (supra) wherein it has been held as under: 22. However, with the framing of the Special Economic Zones Act, different existing SEZ units were brought within the fold of the Special Economic Zones under the provisions of sub-section (4) of Section 3 and sub-section (1) of Section 4 contained in the Special Economic Zones Act and even the new units would be governed by such statutory provisions. Matching amendments were made in the Central Excise Act, 1944. Section 3, for example, which contained clauses (a) and (b) both, now contain an exclusion clause for goods produced or manufactured in Special Economic Zones from payment of Cenvat. Section 5A, however, continued without corresponding change. In the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by introduction of SEZ Act and the changes made in the Central Excise Act in this regard. [As discussed earlier, legislative intention emerging is that a SEZ unit will have no liability to pay countervailing duty, if the local manufacturer of like goods is exempt from payment of whole of such duty] . 8. In the present case, the impugned order itself records at para 12.11 that the subject goods as ball pen parts were generally exempted from central excise duty under S. No. 325(ii) of Notification No.12/2012 dated 17 March 2012. Even on the point of limitation the demand has to fail as the BOE‟s were countersigned by the customs official prior to clearance of goods from the Falta, SEZ. Therefore, the department was aware that the goods were cleared by way of stock transfers not attracting any VAT/Sales Tax. The Notice was issued only after the expiry of the normal period of limitation of 1 year and could not revive the demand, which had got time barred. The decision of the Tribunal in Baccarose Perfumes and Aveco Technologies case fully supports the case of the Appellant. 9. Coming to the issue of limitation, we find that the bills of entry were filed and assessed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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