TMI Blog2023 (6) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... bviously applies to used and discarded goods of Ch. 39, 54 etc. assorted and collected as waste and scrap.In the present matter documents i.e. Certificate of foreign supplier, Test Report of imported goods produced by the appellant clearly show that the goods imported by the appellant are material not of prime grade. Further in the present matter there is no dispute on the use of the imported goods as waste scrap by appellant in factory premises. Thus, it is evident beyond the scope of any doubt that the imported plastics granules were nothing but waste and scrap of goods falling under chapter 39 - the imported goods have to be considered as waste scrap of goods falling under chapter 39 and entitled to above exemption. Hence there are no merit in impugned order. Extended period of limitation - suppression of facts - HELD THAT:- The issue involved is clearly an interpretational issue of exemption notification and the interpretation made by the Revenue could have been made from the claim of notification as declared in their ER-1 return. It is also fact on record that the appellant have cleared the goods by filing bills of entry and the fact that the goods imported is not clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred the present appeal. 2. Shri Devashish K. Trivedi, Learned Counsel appearing on behalf of appellant submits that the Central Excise Exemption Notification No. 4/2006-CE dated 01.03.2006 clearly mentions that for manufacturing goods of Tariff Items 3901 to 3914, the waste falling under Chapter 39 must be used. It is nowhere mentioned that waste falling under Chapter 3915 must be used. This means the Notification itself was drafted, completely understanding and believing that waste of plastics which is reprocessed in India and cleared under the aforesaid exemption Notification could fall anywhere under entire Chapter 39. It is not necessary that the same would only fall under Tariff items 3915. Further, the foreign supplier has specifically certified that the goods supplied by them and imported by the appellant for reprocessing the same into India under the bill of entries are waste of plastics in primary form. 2.1 He also submits that at the time when the goods were imported, the Assistant Commissioner of Customs, had drawn the sample of the said imported goods. Sample were taken from the lot covered under some of the bill of entries. As per the test report the goods are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Annexure A to the show cause notice details of the clearances of the final products made under exemption is given. According to the same, demand is made towards the said period. Total demand is of Rs. 52,96,314/-. It may be seen that the majority of the demand is for the period prior to 18.11.2010. Only a small fraction of the demand is of the period of past one year from the show cause notice i.e. in between 18.11.2010 to 18.11.2011. In the present matter there is no fraud, wilful mis-statement, suppression of facts, intent to evade payment of duty, mala-fide, etc. It is so because the raw materials was imported openly in front of the customs authority. Bills of entry were filed. The samples of imported waste of plastic which were classified in the bill of entry under tariff Item 39069010 being described as Arcylic Reprocessed Granules (Mix Colour) , under Tariff items 39121190 being described as Recycled Mix Plastic Granules , and Tariff Items 39069010 being described as Recycled Floorweer of Mix Plastic Granules were tested on the instance of the Assistant Commissioner of Customs. It was confirmed according to the Test Report that they were waste of Plastic. Subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, or otherwise. The said Sl. No. 78 of the notification is reproduced for ready reference : TABLE S. No. Chapter or heading or sub-heading or Tariff item of the First Schedule Description of excisable goods Rate Condition No. (1) (2) (3) (4) (5) . . . . 78 3901 to 3914 Plastic materials reprocessed in India out of the scrap or the waste of goods falling within Chapters 39, 54, 55, 56, 59, 64, 84, 85, 86, 87, 90, 91, 92, 93, 94, 95 and 96 Explanation. - For the removal of doubts, it is hereby clarified that nothing contained in this exemption shall apply to plastic materials reprocessed in a free trade zone, a special economic zone or a hundred per cent export-oriented undertaking and brought to any other place in India Nil . 4.1 We find that in the present matter the case of the revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue could be expressed immediately on filing of ER-1 return and the show cause notice could have been issued within a normal period. Therefore, claiming the exemption notification which was in the knowledge of the Revenue, the suppression of fact or malafide on the part of the appellant cannot be attributed. The issue involved is clearly an interpretational issue of exemption notification and the interpretation made by the Revenue could have been made from the claim of notification as declared in their ER-1 return. It is also fact on record that the appellant have cleared the goods by filing bills of entry and the fact that the goods imported is not classified under 3915 was well informed to the Department. Therefore, in the peculiar facts as noted above there is no suppression of fact or malafide intention on part of the appellant, therefore, the invocation of extended period is illegal and incorrect. Accordingly, the demand for the longer period is not sustainable on the ground of time bar also. The demand is set aside on merit as well as on limitation. 5. As per our above discussion and finding, the impugned order is set aside and the appeal allowed with consequential r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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