TMI Blog2023 (7) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... The demand raised invoking the extended period cannot sustain and requires to be set aside - Appeal is allowed on the ground of limitation. - EXCISE APPEAL No. 41627 OF 2019 - FINAL ORDER No.40540/2023 - Dated:- 10-7-2023 - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) Mr. R. Meenakshi Sundaram, Advocate For the Appellant Mr. M. Ambe, Deputy Commissioner (A.R) For the Respondent ORDER Brief facts are that the appellant holds Central Excise Registration and is a 100% EOU which is engaged in the manufacture of telephone cords falling under Chapter 8517 of CETA 1985. They imported raw materials without payment of Customs duty, Special Customs Duty (SCD) and Additional Customs duty (ACD). The manufactured goods were exported as well as cleared into Domestic Tariff Area (DTA). For such clearances into DTA, the appellant availed concessional rate of 50% Customs duty, SCD and ACD under Notification No.2/95 dated 04.01.1995. In terms of the said notification for effecting DTA clearances, the appellant had to furnish details of foreign exchange earnings as percentage of export to the Development Commissioner, MEPZ, Chennai. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention to evade payment of duty. The said allegation is totally baseless and there are no grounds for invoking the extended period. It is submitted that the appellant, a 100% EOU after fulfilment of export obligation made a request for permission to sell final products in DTA. Along with the said application, the appellant has enclosed the details and documents about the total production, export quantity of sales, import of raw materials and procurement of raw material from other 100% EOUs during the period from 01.04.1997 to 31.03.1998. These documents / statements were countersigned by the Superintendent of Central Excise and also submitted before the Development Commissioner, MEPZ, Chennai. The appellant therefore has not suppressed any facts from the department. 3. After verifying the details and the documents furnished by the appellant, the Development Commissioner, MEPZ by proceedings dated 21.09.1998 and 05.03.1999 has granted permission to sell goods into DTA. On the basis of such permission, the appellant has made the DTA sales and paid Customs Duty / SCD and ACD in terms of Notification No.2/95 dt. 04.10.1995 which allows concessional rate of duty. 4. The Ld. Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad Bench in Final Order No. 70112 of 2022 dt. 17.06.2022. 7. The Ld. Counsel urged that the appellant having declared all the details and not having suppressed any facts, the demand raised invoking extended period requires to be set aside. The Circular issued by the Board No.96/1/2017 dt. 19.1.2017 was also referred to by the Ld. Counsel, to argue that the Board has clarified that while invoking extended period, it must be ensured that the necessary and sufficient conditions exist. Further, there are umpteen number of decisions of various courts wherein it is held that unless there is evidence to establish any positive act on the part of appellant to suppress facts with an intention to evade payment of duty, the extended period cannot be invoked. Ld. Counsel prayed that the appeal may be allowed. 8. Ld. A.R Sri M. Ambe appeared for Revenue and supported the findings in the impugned order. It is submitted by Ld. A.R that the net foreign exchange calculated by the appellant is incorrect and it has projected a higher percentage of foreign exchange. NFEP has been the basis the approval for DTA clearance. Para-9 of the impugned order was adverted to by the Ld. A.R to submit that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... total of CiF value of imported inputs. According to department, the value of input procured from other EOU also has to be included in B . It is thus alleged that if the deduction of Rs.53,05,028/- is avoided, the NFEP would be only 3.95%. The Ld. Counsel has argued that only CiF value has to be included and therefore the value of goods procured indigenously need not be included. 12. Be that as it may, Ld. Counsel has put forward strong arguments on the ground of limitation. It is noted that they have filed all the details with regard to the import of raw materials, statement showing export clearances, statement showing cost of finished products and also the statement of value addition. Only after thorough scrutiny of all such documents, the Development Commissioner, MEPZ, Chennai has granted permission for DTA clearance. This being the case, the allegation that the appellant has wilfully suppressed the facts with an intention to evade payment of duty is without any factual basis. The appellant has also furnished details of the calculation done by them when requested by the department. 13. The Hon ble Supreme Court in the case of Cosmic Dye Chemicals Vs Collector of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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