TaxTMI 
TaxTMI 
2019 (8) TMI 1501
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....side India. During the month of September 2011, the appellant cleared goods (by- products) to its own DTA unit by availing exemption provided under Notification no. 23/2003-CE dated 31.03.2003 (serial no. 3) read with para 6.8(g) of Foreign Trade Policy (FTP-2009-2014), which has been disputed by the Central Excise Department in the present case. For ready reference, the various communications that were exchanged by the appellant with the Central Excise Department and Development Commissioner's office date wise events is tabled below:- Date Particulars 14th February 2008 LOP No.2(1)/H-11/2007/5246 granted to appellant for setting EOU unit at Mahistikry 10th March 2008 Appellant informed CE Department that it would dispose of its by-products (naphthalene & oils) by way of DTA sale and will avail benefit under serial no.3 of exemption Notification no.23/2003-CE dated 31st March, 2003 (hereinafter Notification) 29th July, 2011 Appellant applied to Development Commissioner to seek permission to exit EOU Scheme. 3rd August 2011 Development Commissioner issued in-principle approval for debonding in terms of para 6.18 of FTP, subject to certain conditions (i.e. No Dues Certifica....
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....Oil are a by-product in LOP beside their main product Carbonised Pitch and thus requested to accord permission for DTA sale of Naphthalene and Creosote Oil under 6.8(g) of FTP instead of instead of 6.8(a) as mentioned in the above letter dated 13.09.2012 14th November 2012 Letter from Development Commissioner directing the appellant for incorporation of Naphthalene and Creosote Oil as by-product in LOP with full justification so as to accord permission for DTA sale under 6.8(g) of FTP instead of 6.8(a) of FTP. 4th December 2012 While replying to letter dated 14.11.2012, the appellant interalia submitted quantitative details and also prayed to include Naphthalene and Creosote Oil as by-product in LOP beside their main product Carbonised Pitch and accordingly accord permission for DTA sale of Naphthalene and Creosote Oil under 6.8(g) of FTP instead of instead of 6.8(a) as mentioned in the above letter dated 13.09.2012 19th December 2012 In view of appellant's letter dated 04.12.2012, Development Commissioner accorded permission and revised appellant's LOP considering Creosote oil & Napthalene as By-product and Carbonised Pitch as finished product for export 20th December 2012 ....
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.... 2011 would be covered under para no. 6.18 of the FTP which deals with the provisions relating to exit from the EOU scheme. Based on the afore-said reasons, the Ld. Commissioner confirmed demand of central excise duty of Rs. 4,62,92,690/- under Section 11A(4) of the Central Excise Act, 1944 readwith Section 28(4) of the Customs Act 1962, alongwith interest under Section 28AA of the Customs Act read with section 11AA of Central Excise Act and imposed penalty of Rs. 4,62,92,690/- in terms of Section 112 of Customs Act read with Section 11AC of the Excise Act. The assessee is in appeal before us against the said order. 4. Sri Rajeev Agarwal, CA, appeared for the appellant and Sri S.S.Chattopadhyay, Ld.D.R. appeared for the Revenue. 5. The Learned CA submitted that the Learned Commissioner made an erroneous finding that the appellant has deliberately misguided the department by way of portraying itself as a regular 100% EOU for availing the benefit of Notification No.23/2003. He stated that as per Note no. (ii) of Appendix 14-I-L of Hand Book of Procedures (HBP) prescribed under the FTP , it is stated that an EOU unit shall continue to be treated as an EOU until the date of final exi....
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.... Ld. Commissioner has accepted the fact in Para 5.3 of the order that necessary disclosures were duly made in the ER-2 return filed for the goods cleared to DTA unit with reference to subject exemption notification claimed by them. He relied on the decision of Hon'ble Gujarat High Court in the case of Commissioner v. Meghmani Dyes & Intermediates Ltd. 2013 (288) ELT 514 (Guj.) wherein it has been held that allegations against an EOU cannot be made for suppression of facts if all details/information is provided in ER-2 return. Similar view has been taken by the Hon'ble Bombay High Court in CCE., Pune-I v. Emcure Pharmaceuticals Ltd. 2016 (342) ELT 172 (Bom.). He also relied on the judgement in the case of CCE, Mumbai v. A. S. Moloobhoy & Sons [2015] 57 taxmann.com 297 (SC) wherein it has been observed by the Apex Court that when all the facts and manner of use of goods is disclosed, there cannot be any suppression of fact. Further, he relied on the Tribunal's decision in Wenger and Company v. CCE, Delhi [2016] 75 taxmann.com 243 (New Delhi-CESTAT) wherein it has been observed that when revenue is in full knowledge of the things since the very beginning, extended period of limitation....
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....d not finally exitfrom EOU. The refund was allowed by lower authority. In the appeal filed by the Revenue against the said refund order, the Appellate Commissioner allowed the appeal while noting that there is no provision for re-bonding. Allowing the appeal filed by the assessee, the Tribunal observed that - "5. We have gone through the records of the case carefully. We find that the Dy. Commissioner has granted the refund taking into account the factual position and also the EXIM policy. It has been stated that as per EXIM policy a unit goes out of EOU scheme only when the final exit order is given by the Development Commissioner after obtaining a no-objection certificate from the jurisdictional Customs and Central Excise authorities on payment of applicable duties on all capital goods/raw materials/finished goods, etc., in stock and after canceling the customs licence. In the present case, these formalities had not been completed. Moreover, the de-bonding permission by the Development Commissioner has lapsed. Hence, the unit is continuing as EOU and that position has been confirmed by the Development Commissioner in his letter dated 9-12-2004. As the unit continues to function....
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....effected advance Domestic Tariff Area clearances under Notification No. 23/2003. Thus the fact was known to the Department and hence issuing a show cause notice dated 3-7-2009 covering a period April, 2004 to March, 2006 was barred. 4. These very facts were, therefore, appreciated by the Tribunal and in arriving at the conclusion that the show cause notice and the proceedings in pursuance thereof were barred by limitation. It may be that the Tribunal dealt with an incidental contention of the Revenue. Merely because that incidental question has been dealt with, we cannot loose sight and shift the focus from the main question. The main question was the applicability of Section 11A and invocation of the extended period thereunder. The extended period could not have been invoked in the absence of the requisite ingredients and to be found in Clauses (a) to (e) of sub-section (4) of Section 11A of the Central Excise Act, 1944. This is clearly a finding of fact and reached in the backdrop of the assessee's peculiar case. We do not think that such findings raise any substantial question of law. The Tribunal's view cannot be said to be perverse. It is a possible view of the matter. The a....