Tribunal waives duty & penalty deposit, rules demand time-barred. Licensing authority approved transfer.S/Shri Gowri Shankar, Krishna Kumar, JJ. REPRESENTED BY: Shri Vipin Jain, Chartered Accountant, for the Appellant. Shri A. Chopra, DR, for the Respondent. [Order per : Gowri Shankar, Member (T)]. - The application is for waiver of deposit of duty of Rs. 15,29,068/- and penalty of Rs. 1 lakh demanded and imposed on the ground that the goods imported by the appellant were not entitled to the benefit of exemption contained in Notification 203/92 for the reason that one of the conditions subjec... ... ... Issues:
Waiver of deposit of duty and penalty under Notification 203/92 due to contravention of conditions for exemption; Invocation of extended period of limitation under Section 28(1) based on suppression by exporter; Applicability of extended period when no act or omission justifies it.

Analysis:
The judgment deals with an application for the waiver of deposit of duty and penalty amounting to Rs. 15,29,068/- and Rs. 1 lakh, respectively, imposed on the appellant. The issue arises from the contention that the goods imported were not eligible for exemption under Notification 203/92 as the condition of availing Modvat credit in the manufacture of the exported product was violated.

Regarding the invocation of the extended period of limitation under Section 28(1) based on suppression by the exporter, it was argued that the demand made in 1999 was time-barred as there was no act or omission by the appellant justifying the extended period. The Tribunal accepted the prima facie view that the demand was indeed barred by limitation. The Commissioner's argument that the appellant should have exercised proper care before the license transfer was deemed insufficient, as the transfer was permitted by the licensing authority. This position finds support in previous Tribunal decisions, such as Plastchem Industries v. CCE - 2000 (120) E.L.T. 775.

Consequently, the Tribunal decided to waive the deposit of duty and penalty and stayed their recovery based on the prima facie view that the demand was time-barred and the extended period under Section 28(1) did not apply in the absence of any act or omission justifying its invocation. This decision was crucial in providing relief to the appellant and upholding the principles of fairness and legal limitations in duty recovery proceedings. Stay/Dispensation of pre-deposit MARVEL INDUSTRIES LTD. Versus COMMISSIONER OF CUSTOMS, MUMBAI
Customs
2003 (11) TMI 537 - CESTAT, MUMBAI - 2004 (177) E.L.T. 268 (Tri. - Mumbai)
CESTAT, MUMBAI - AT
Dated:- 20-11-2003
C/1380/2002-Bom - 2955/2003-WZB/C-II
Customs
S/Shri Gowri Shankar, Krishna Kumar, JJ. REPRESENTED BY: Shri Vipin Jain, Chartered Accountant, for the Appellant. Shri A. Chopra, DR, for the Respondent. [Order per : Gowri Shankar, Member (T)]. - The application is for waiver of deposit of duty of Rs. 15,29,068/- and penalty of Rs. 1 lakh demanded and imposed on the ground that the goods imported by the appellant were not entitled to the benefit of exemption contained in Notification 203/92 for the reason that one of the conditions subject to which the exemption is available, that Modvat credit has been availed of in the manufacture of the exported product, had been contravened. 2. The goods were cleared from Customs in 1994 and the notice demanding duty dated 29-1-1999 invokes the extended period of limitation contained in the proviso under Section 28(1) of the Act on the ground that there was suppression on the part of the exporter of the goods, to whom the licence was issued (and subsequently transferred to the applicant) that Modvat credit had been taken. The contention of the representative of the applicant that there being no act or omission by it which would justify invoking the extended period and therefore the demand is barred by limitation prima facie has to be accepted. The extended period contained in the proviso under Section 28(1) not apply where the person from whom the duty has been demanded or his agent or employee has not committed any act or is responsible for any omission which would attract any of the circumstances specified in that proviso. The Commissioner attempts to get this to say that the applicant could have exercised proper care before the licence was transferred is no answer. The transfer of the licence has been permitted by the licensing authority. The applicant's case is supported by various decisions of the Tribunal in Plastchem Industries v. CCE - 2000 (120) E.L.T. 775. 3. On this prima facie view, we waive deposit of the duty and penalty and stay their recovery.
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