Tribunal rejects cement exemption claim but overturns penalty. Genuine belief cited. Duty demand upheld, penalty set aside.

The Tribunal rejected the appellant's claim of exemption under Notification No.3/2004-CE for cement clearance to SEZ due to lack of explicit exemption for cement. The penalty under section 11AC was overturned as the appellant demonstrated a genuine belief in the contractor's certificate and lack of intent to evade duty. The duty demand and interest were upheld, but the penalty was set aside. The appeal was partly allowed, emphasizing the absence of fraudulent intent in the appellant's actions.

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Issues:
Claim of exemption under Notification No.3/2004-CE for cement clearance to SEZ, Mis-declaration in ER-1 returns, Demand of duty, Interest, Imposition of penalty under section 11AC.

Analysis:
The appellants, engaged in cement manufacturing, claimed exemption under Notification No.3/2004-CE for clearing cement to SEZ but were accused of mis-declaring clearances in their ER-1 returns. The department issued a show cause notice for duty demand, interest, and penalty. The original authority and Commissioner (Appeals) upheld the demand and penalty, leading to the appeal.

The appellant argued that based on a certificate from a contractor, they believed the cement supplied for a water treatment plant was exempt. However, the department contended that cement was not explicitly exempted under the notification, and the contractor's certificate did not grant exemption. The Tribunal found the appellant's argument weak, stating that the notification did not exempt cement, hence rejecting the claim of implied exemption.

Regarding the penalty under section 11AC, the appellant claimed no intent to evade duty, citing reliance on the contractor's certificate in good faith. They explained the misrepresentation in returns was inadvertent, as most cement supplies were duty-exempt to SEZ. The Tribunal acknowledged the appellant's genuine belief in the certificate's validity and overturned the penalty, deeming it unwarranted due to the lack of intent to evade duty.

Conclusively, the Tribunal modified the impugned order by setting aside the penalty under section 11AC while upholding the duty demand and interest. The appeal was partly allowed on these terms, emphasizing the absence of fraudulent intent in the appellant's actions.

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