9911796707
TMI Blog2023 (7) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... was ordered with further direction to invoke the bank guarantee for Rs.2,00,000/-. 2. Briefly stated, the facts for the purposes of the present appeal are that the appellant submitted an application for registration of contract in the form of two nos. Purchase Orders for setting up a new unit for cold storage facilities claiming benefits of Project Import Regulation 1986 (PIR 1986) against which two separate Essentiality Certificates were issued in favour of the appellant by the Union Ministry of Food Processing Industries (sponsoring authority) in order to avail benefit under (PIR 1986) subject to fulfill conditions of Notification dated 01.03.2022 as applicable. 3. The aforesaid 2 Purchase orders were registered under Project Import Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption from CVD. 5. That after substantial lapse of time, the matter was again brought up on a limited issue raised through a Letter dated 05.04.2019 which was sent by Deputy Commissioner, PIFC (Port), Kolkata to Assistant Commissioner of Central Excise Guwahati, to ascertain whether compliance of Conditions No.2 and 3 of Sr No. 232 of Notification No. 12/2012-CE dated 17 March 2012 were fulfilled by the appellant or not. After verification it was replied by the Assistant Commissioner, Central Excise, Gauhati under letter dated 09.05.2019 to the Department. It appeared to Revenue, the appellant had violated the provisions of Regulations 5 & 7 of PIR 1986 r/w Board Circular No.22/2011 Cus. dated 04.05.2011, culminating into a SCN dated 30.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Adjudicating Authority thereby showing the SCN to be absolutely time barred as it has been issued after more than 5 years. Various other grounds in defence were also submitted by the appellant. However, the O-I-O was passed by the lower adjudicating authority confirming the duty demand, interest, enforcement of P.A. Bond, encashment of Bank Guarantee, but dropping Penalty u/s 117 of the Customs Act. 7. Being aggrieved the Appellant preferred appeal before the Commissioner (appeals), who observed in the impugned order-inappeal, that the Appellant is contesting on the ground of limitation and not on the basis of merit. Further it is observed that no specified time limit is provided to issue demand notice under section 18(2) of the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch 2016. These letters were duly replied by the Appellant through the letter number GE/CS/12 - 13/222 dated 30 May 2016. In Para 8 of the SCN, there is reference to audit query being reference number No. RA/CRA/PA on Proj.Imp/2016-17 dated 14 July 2016 was raised by CRAD for short levy of duty due to incorrect application of exemption notification. This was also replied by the Appellant with proper clarifications being reply dated 20 August 2016. It is further evident from the SCN that the goods were assessed, extending benefits under Serial No. 515 of exemption notification No. 12/2012 -Cus dated 17th March 2012 with custom duty at the rate of 5% BCD and Nil CVD. Further the Appellant had disagreed with the audit objections. Further it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of change of opinion beyond the period of five years. Accordingly, I hold that the Show Cause Notice is hit by limitation.
11. Also, Regulation 7 of PIR 1986 is not a mandatory provision as held by the following:-
Hon'ble Andhra Pradesh High Court in CCE Hyderabad vs. Creative Indus Pvt Ltd 2012(282) ELT 349
Gas Authority of India Ltd 2003 (159) ELT 468
CESTAT Delhi in Final Order No. 51032-51033/2022 dated 27.10.2022 in Appeal Nos. C/50275-50276/2021
12. In view of my aforementioned observations and findings, I allow this appeal and set aside the impugned order. The Appellant shall be entitled to consequential benefits in accordance with law.
( Pronounced in the open court on 27. 06. 2023 ) X X X X Extracts X X X X X X X X Extracts X X X X
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