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Issues: Whether duty could be demanded by revoking the benefit of exemption under Notification No. 203/92-Cus. on the allegation that Modvat credit had been taken on inputs used in exported goods, and whether the extended period under the proviso to Section 27(1) of the Customs Act, 1962 could be invoked in the absence of evidence of suppression or actual availment of credit.
Analysis: The exemption could be denied if the importer failed to satisfy the condition attached to the notification at the time of import. However, once the department sought to recover duty by invoking the extended period, it had to establish material showing that Modvat credit had in fact been taken and that the statutory conditions for the longer limitation were met. The record showed that the omission was on the part of the assessing officer and not due to suppression, misstatement, or any comparable act by the importer. There was also no evidence that Modvat credit had actually been availed of. The department could not shift to the importer the burden of proving a fact which the department itself was required to establish.
Conclusion: The demand was not sustainable and the orders of duty were liable to be set aside.
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