Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs Unknown on 3 February, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT-II
Appeal No.E/705/08
Arising out of OIA No.KKS/79/DAMAN/2008, dt.01.02.08
Passed by: Commissioner of Central Excise & Customs (Appeals), Vapi
For approval and signature:
Honble Mrs. Archana Wadhwa, Member (Judicial)
Honble Mr. B.S.V. Murthy, Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant/s M/s. Firmenich Aromatics (India) Pvt. Ltd.
Represented by Shri Kiran M. Sawale, Adv
Vs.
Respondent/s CCE Ahmedabad
Represented by Shri I. Ahmed, SDR CORAM:
MRS. ARCHANA WADHWA, MEMBER (JUDICIAL) MR. B.S.V. MURTHY, MEMBER (TECHNICAL) Date of Hearing :03.02.11 Date of Decision:03.02.11 ORDER No. /WZB/AHD/2011 Per: Mrs. Archana Wadhwa:
The appellants obtained raw materials orange 533 of 1,700 Kgs and Comp. 941468 of 1800 Kgs under CT 3 certificates 003/2001-2002 dated 20.8.2001 from their own DTA unit without payment of duty. It is the submission of the appellants that out of this quantity only 170 Kgs of orange 533 and 180 Kgs of Comp. 941468 could be used for production and the balance was returned since it was unfit for use. The Revenue has contended that on scrutiny of the quality control report dated 28.8.2001, it was found that the goods conformed to their request specifications and therefore were not defective and hence there was a mis-declaration on the part of the appellants while sending back the goods on the ground that they were defective. Goods were returned on 30.4.2002 and show cause notice was issued on 16.2.2006.
2. Learned advocate on behalf of the appellants submitted that the show cause notice is clearly time barred and the raw materials even though initially were found to be according to specifications, when taken up for manufacture were found to be unfit and hence were sent back. He submits that all the transactions took place with the knowledge of the Revenue and therefore extended period is not applicable. The learned S.D.R., on the other hand submits that as per para 6.18 of exemption policy, when raw materials are returned, they should be replaced or such raw materials have to be destroyed if found unfit. Therefore there was a clear mis-declaration on the part of the appellants when they claimed that the raw materials were defective and sent them back and therefore extended period is applicable.
3. We find that admittedly the goods were sent after obtaining permission from the Assistant Commissioner and rewarehousing of certificates as required were produced and the only suppression is regarding the declaration that goods were found to be defective. I find that even if the goods were not defective as claimed by the Revenue, extended time limit is not available since the officers of the Revenue were aware that goods had been sent back in terms of para 6.18 of exim policy and they were to be replaced by the supplier or proof of destruction has to be produced.
4. In view of the above, we hold that the demand is barred by limitation. The impugned order is accordingly set aside and appeal allowed on limitation.
(Pronounced in Court)
(B.S.V. Murthy) (Archana Wadhwa)
Member (Technical) Member (Judicial)
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