2009 (11) TMI 751

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....t. The duty has been demanded while denying the benefit of exemption under Notification No. 8/97-C.E., dated 1-3-97 as amended in relation to such excess production. The challenge is mainly on three grounds namely that though the inspection of the premises and the seizure of the records was done on 24th October, 2000, the show cause notice was issued only on 18th of February, 2002 without there being any justification for invoking extended period of limitation. Secondly, that no buyer has confirmed the alleged clandestine clearance of the goods for the period subsequent to 24th of October, 2000 and thirdly, that the duty element on the alleged excess production could not have been calculated in terms of proviso to Section 3. Fourthly, it is....

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...., 2001 and that is apparent from various statements recorded of the buyers by the investigating agency and referred to in the impugned order. He further submitted that the impugned order expressly discloses that some of the buyers of the excess product from the appellants continued to purchase the goods till January, 2001 having commenced such dealings with the appellants since April, 1999 and in that regard attention was drawn to the statement of Shri D.K. Gupta, Proprietor of M/s. Ankur Fibre and Yarn, Tezpur Road, Ludhiana as also of Shri N.L. Sharma of M/s. Sharma Yarn Agency, Harcharan Nagar, Ludhiana, the statements which were recorded in February, 2001. In support of this contention that the authority made no mistake in calculating t....

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.... to 1st September, 1999, there are buyers like S.K. Bhatia who has stated that similar system of under invoicing was being followed since 1999. At the same time, it has also been stated by the buyer that he has been dealing with the appellants since September, 1999. In other words, as rightly submitted by the learned advocate for the appellants, prima facie, it does not appear that the Department has been able to produce any evidence regarding such allegation in relation to the period prior to 1st September, 1999. Even the example of the buyer noted in the order does not disclose transaction prior to September, 1999 since the buyer himself has stated that the dealings with the appellants by him had been since September, 1999. In the circums....

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....nsport Co. Pvt. Ltd. Therein, it was clearly held that in case of goods cleared by 100% EOU and sold in India whether with or without permission of the Development Commissioner, the assessment shall be made under proviso to Section 3(1) of the Central Excise Act, 1944. Obviously, therefore, and more particularly considering that the Notification No. 8/97 does not disclose any different position as compared to Notification No. 125/84, which was the subject matter of the consideration of the Larger Bench, the ruling therein would squarely apply to the matter in hand and certainly cannot be ignored at the stage of stay application being considered in the matter in hand. Undoubtedly learned advocate of the appellants try to distinguish by refer....