2004 (3) TMI 703

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....l Excise Act is invocable. 2. Shri Suresh Agarwal, learned Advocate, submitted that the appellants manufacture parts of crane and claimed SSI exemption under Notification No. 9/2000-C.E., dated 1-3-2000; that during the financial year 1999-2000 they had cleared some goods for export to Nepal under bond without payment of duty; that the value of those clearances was not added in the aggregate value of clearances for home consumption in terms of Clause 3 of the notification for the purpose of determining the aggregate value of goods cleared for home consumption; that during the subsequent financial year 2000-2001, they cleared the excisable goods at the concessional rate of duty under Notification No. 9/2000 as their total value of cl....

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.... covered by this clause. 4. Countering the arguments, Shri Virag Gupta, learned D.R. submitted that explanation "G" to the Notification No. 9/2000 makes it very that clear that "clearance for home consumption shall also include clearances for export to Bhutan and Nepal" and thus, any export made to Nepal whether under claim of rebate or under bond has to be included while computing the value of clearance for home consumption; that the extended period of limitation is invocable since in their declaration the appellants had declared the value of clearance for home consumption only to be Rs. 2,95,13,718/- and thus, they had not declared the correct value of clearance as they have not added the value of clearance of goods to Nepal; that....

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.... not mean that they had deliberately, with intent to evade payment of duty, not shown the same. It has been held by the Supreme Court in the case of CCE v. Chemphar Drugs & Liniments - 1989 (40) E.L.T. 276 that "in order to make the demand for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section 11A of the Act, it has to be established that the duty of excise has not been levied or paid or short levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provisions of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or....