TaxTMI 
TaxTMI 
2013 (6) TMI 141
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....nd is directed against the Order No. A/74/WZB/AHD/2010, dated 6th January 2010 in Appeal No. E/1296/2009 passed by the Customs, Excise and Service Tax Appellate Tribunal, Western Zonal Bench, Ahmedabad, and thereby the Appellate Tribunal allowed the appeal of the assessee to the extent of remanding the matter to the Commissioner for a fresh decision after considering the submissions of the assessee as well as the Revenue. Tax Appeal No. 1731 of 2010 4. This Appeal under Section 35-G of the Central Excise Act, 1944 is at the instance of the Revenue and is directed against the Order No. A/47/WZB/ AHD/2010, dated 5th January 2010 in Appeal No. E/1290/2009 passed by the Customs, Excise and Service Tax Appellate Tribunal, Western Zonal Bench, Ahmedabad, and thereby the Appellate Tribunal allowed the appeal of the assessee to the extent of remanding the matter to the original adjudicating authority, directing to consider the eligibility in DTA with respect to each item and the applicability of the words "similar goods" to be adopted in its true meaning. Questions of law : 5. In Tax Appeal No. 1731 of 2010, the Revenue has raised the following questions of law : (a) Whether....
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....een manufacturing goods, namely, dyes i.e. colouring material used for dyeing and colouring fabrics and also agro-chemicals in the nature of insecticides and pesticides. The assessees are 100% Export Oriented Undertakings and, therefore, they are required to export all the goods manufactured in their units. However, vide paragraph 6.8 of the Export-Import Policy, all EOUs are allowed to sell goods upto 50% of the value of export in Domestic Tariff Area i.e. the local market, if they were permitted to sell goods in DTA by their monitoring agency, namely, the Development Commissioner under the EXIM policy. By a Central Excise Notification No. 23/2003 dated 31st March 2003 as amended, EOUs are allowed to pay concessional rate of excise duties for their sales made in DTA, subject to various conditions. The relevant condition for the present case is that the goods being cleared in DTA were similar to the goods which were exported. 8. The respondents of both the Appeals have been allowed to sell in DTA specified quantities of dyes as well as agro-chemicals by the Development Commissioner by issuing specific permission letters, wherein the quantities of goods allowed to be sold in DTA ....
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....earances was illegal. 10. Record reveals that for invoking extended period of five years, instead of the normal period of one year for demanding duties, the proviso to Section 11A(1) of the Central Excise Act was invoked in the show-cause notices by alleging that the respondents had not disclosed material and relevant facts to the Central Excise authorities as the goods cleared in DTA were not similar to the goods exported and, therefore, concessional rate of duty was availed by the respondents suppressing the facts from the department. 11. Record reveals that the demand was raised in the notices on the basis that the respondents were permitted to clear in DTA 50% quantities of export made by them but the goods cleared in DTA were in excess of the permissible limit of 50% of exports. 12. It appears from the materials on record that the case of the Revenue as regards the DTA clearances in excess of 50% of the export is based on the fact that the respondents were allowed to sell in DTA 50% quantity of the export of a particular variety of dyes and 50% of the export of a particular dye of insecticides-pesticides because DTA sale was permissible for the goods similar to the go....
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....iew while deciding Appeal No. E/1290/2009 (Tax Appeal No. 1731 of 2010) : "...In this case what was required to be considered was whether the definition of "similar goods" available in Customs Valuation Rules can be applied to the facts of the case. Basically, the issue involved appears to be covered by the decisions cited by the learned advocate. The facts were not relevant but ratio of the decision as regards words "similar" was to be considered. Therefore, these decisions are applicable. Ratio of these decisions is that definition available in the Customs Act cannot be used in respect of Notification issued under another enactment. In such cases, common parlance or dictionary meaning has to be applied. Therefore, we find this issue has not been dealt with properly by the Commissioner. We could have considered this issue here in the Tribunal but for the fact that there is no examination of the goods in question which have been cleared in the DTA in terms of definition of similarity. In our opinion, in such cases, there has to be examination in respect of each product to show that this product is not similar to the one exported and why benefit of notification is not available t....
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....nded period, Commissioner has taken a view that it should be taken from the end of the financial year. We have already taken a view in the other appeal that extended period is not invokable. Admittedly, the facts in this case are also similar as regards filing of returns, submission of various documents, permission of Development Commissioner and other relevant details applicable for invoking extended period. Therefore, we consider that it would be appropriate to take a similar view as regards extended period in this case also. As regards the clearance of dyes, the learned advocate submits that unlike the other case, here there is no proper annexure to the show-cause notice. Thereby, it is not possible to identify whether the demand made by the department is in respect of the same goods or not. In any case, since the other appeal cited above has been remanded to the Commissioner for a fresh decision in the light of views expressed therein and in this case also as far as dyes are concerned, same logic which was applied to Agro Chemicals would apply, that is to say, there is a need for discussion in respect of each item as to why the benefit of notification cannot be extended, the ma....
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....their excisable goods only for export. However, the Government has provided a facility to the EOUs to clear their export goods upto certain value of their export in the Domestic Tariff Area (DTA) on payment of concessional rate of duty. Mr. Ravani heavily relied on the provision of Notification No. 23/2003-C.E., dated 1st March 2003 as amended, under which the assessees have cleared the goods at concessional rate of duty in DTA. According to Mr. Ravani, this benefit of concessional rate i.e. partial exemption from 50% of duty is available subject to various conditions. 21. Mr. Ravani invited our attention to condition No. 2 of the said notification, under which, the exemption was availed of. Condition No. 2 which has been read over is as under :- "If,- (i) the goods are cleared into Domestic Tariff Area in accordance with sub-paragraphs (a), (b), (d) and (h) of paragraph 6.8 of the Export and Import Policy; (ii) exemption shall not be availed until Deputy Commissioner of Customs or Assistant Commissioner of Customs or Deputy Commissioner of Central Excise or Assistant Commissioner of Central Excise, as the case may be, is satisfied with the said goods including software....
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....ing a particular financial year or not. 24. It is submitted that the details shown in ER-2 Returns were not sufficient for the Central Excise officers to ascertain, whether the DTA clearances were within the permissible limit of 50% of the exported goods or not. Mr. Ravani submitted that the findings of the Appellate Tribunal are mainly on the basis of ER-2 Returns and the same can be termed as erroneous. The Appellate Tribunal ought to have remanded the case for examination of availability of the extended period of limitation also when the case was sent back to the adjudicating authority for deciding the issue of "similar goods". 25. Mr. Ravani relied upon the judgment of the Supreme Court in the case of Collector of Central Excise v. Chemphar Drugs and Liniments, reported in 1989 (40) E.L.T. 276 (S.C.). 26. He has also relied upon the decision of the Supreme Court in the case of Coaltar Chemicals Manufacturing Co. v. Union of India, reported in 2003 (158) E.L.T. 402 (S.C.) in support of his contention that the details given to the department in some other proceeding can never be a ground to presume that the details were given by the assessee and information is available ....
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....he contentions : 31. Having heard learned counsel for the respective parties and having perused the materials on record, we find that the entire issue revolves around the true and correct interpretation of the words "similar goods" in the context of the controversy which has been raised in the present case. 32. It will not be appropriate for us to touch or observe anything in this regard as the CESTAT has directed the Commissioner to consider this issue and decide afresh. However, we do not find any merit in the contentions of the Revenue that ER-2 Returns which were filled in by the assessees did not enable the Central Excise officers to find out whether the DTA sales were in excess of the 50% of the quantities of the exported goods or not. We do not find merit in this contention for two reasons : first, it is factually incorrect to suggest that the details of the quantities of DTA sales and the quantities of goods manufactured and goods exported were not available in the Returns. We have perused the ER-2 Returns available on record. The format of ER-2 Returns specified by the Central Government shows that details of manufacture and clearance of goods of the concerned month ....
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....ds and, therefore, it is not believable that the Central Excise officers who received the Returns and invoices right from the year 2004-05 were not able to verify the exact quantity of each of the goods exported by the assessees vis-à-vis the DTA clearances made on payment of concessional rate of duty for a long period of five years. 34. Therefore, the findings recorded by the CESTAT that the Central Excise officers receiving the Returns had all the information to enable him to verify the facts is, therefore, correct and cannot be termed as perverse so as to warrant any interference at our ends. 35. We are of the view that the conclusion arrived at by the CESTAT that the demand was time-barred and the Revenue cannot invoke the extended period of limitation in this case is not based on mere assumptions or presumptions but is based on the conclusion arrived at after considering the documentary evidence on record including ER-2 Returns and Central Excise invoices of the assessees. 36. We shall now look into the judgment which has been relied upon by Mr. Ravani in the case of the Chemphar Drugs and Liniments (supra). In the case of Chemphar Drugs and Liniments (supra), ....
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....ts (supra), the Apex Court has held that extended period of five years was applicable only when something positive other than any inaction or failure on the part of the manufacturer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is established. When the department had full knowledge about the facts and the manufacturers' action or inaction is based on their belief that they were required or not required to carry out such action or inaction, the period beyond six months (now one year) could not be made applicable. In the present case, it is not the case of the department that information that was otherwise required to be supplied to the department was knowingly suppressed or concealed from the department, nor is it the case of the department that information which was supplied by the assessees was in any manner incorrect or inaccurate. We cannot ignore or overlook the clear and unambiguous findings arrived at by the CESTAT with regard to the issue of limitation. The CESTAT, upon perusal of record i.e. the Returns, Declarations, etc., has concluded that no evidence had been brought on record to show that the Returns/Documents/Declarations ....
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....hifts on the assessee once the department is able to produce material to show that the appellant is guilty of any of those situations visualized in the Section." 40. We shall also look into the judgments which have been relied upon by Mr. Dave appearing for the assessees. 41. In the case of Jindal Aluminium Ltd. (supra), the Division Bench of Karnataka High Court, in paragraphs 9 and 11 of the judgment, held as under : "9. In respect of the second point it is submitted that the documents which was recovered from the transporter were in respect of the excisable goods on which the duty was clandestinely evade. Firstly, we may observe that the question as to whether there is evasion of duty is basically a question of fact. It is not the case of the revenue that the order passed by the Collector or the Tribunal is perverse. No question is framed on that point. 11. After a finding of fact is recorded by the Tribunal after due consideration of the evidence before it, this Court will not interfere in its jurisdiction under Section 35G. The finding based on inferences drawn from the facts of the case is purely a question of fact. Even if the finding is recorded without any supp....