Custom, Excise & Service Tax Tribunal
M/S. Madhu Silica Pvt. Limited vs Commissioner Of Central Excise & S.T., ... on 11 August, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : E/10425,10426/2013 (Arising out of OIO-1/BVR/COMMISSIONER/2013 dated 08.01.2013, passed by Commissioner Central Excise & Service Tax, Bhavnagar) M/s. Madhu Silica Pvt. Limited : Appellant (s) Shri Darshak R Shah VERSUS Commissioner of Central Excise & S.T., Bhavnagar : Respondent (s)
Represented by :
For Appellant (s) : Shri P.M. Dave & Shri Paritosh Gupta, Advocates For Respondent (s) : Shri J. Nagori, Authorised Representative For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. H.K. Thakur, Hon'ble Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No 3 Whether their Lordships wish to see the fair copy of the Order?
Seen 4 Whether Order is to be circulated to the Departmental authorities?
Yes CORAM :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. H.K. Thakur, Hon'ble Member (Technical) Date of Hearing : 04.08.2015 Date of Decision : 11.08.2015 ORDER No. A/11187-11188/2015 dated 11.08.2015 Per : Mr. H.K. Thakur;
These appeals have been filed by the appellants against OIO No. 01/BVR/Commissioner/2013 dated 08.01.2013 passed by Commissioner of Central Excise and Service Tax, Bhavnagar. Under this OIO dated 08.01.2013 Adjudicating authority has confirmed a demand of Rs. 4,86,65,605/- against the main appellant M/s Madhu Silica Pvt. Limited, along with interest, and also imposed equivalent penalty upon the main appellant. An amount of Rs. 1,36,04,312/- paid by the main appellant during the course of the proceedings has also been appropriated by the Adjudicating authority. A penalty of Rs. 10 Lakh has been imposed upon Shri. Darshak Shah, Director of the main appellant under Rule 26 of the Central Excise Rules, against which Appeal No. E/10426/2013 has been filed.
2. Shri P.M. Dave (Advocate), Shri Paritosh Gupta (Advocate) and Shri Kuntal Parikh (Advocate) appeared on behalf of the appellants. Shri P.M. Dave argued that main appellant was permitted by Development Commission, Kandla Special Economic Zone to work as a 100% EOU for the manufacture of Precipitated Silica. That main appellant has manufactured and exported the goods so manufactured to foreign countries and also a small quantity of such goods were allowed to be cleared and sold in Domestic Tariff Area (DTA) in accordance with the Export-Import Policy. That by a Notification No. 23/2003-CE dated 31.03.2003, issued under Section 5A of the Central Excise Act, 1944 main appellant was clearing goods in DTA by paying duty as prescribed under Serial No. 3 of this notification. That during the period January 2007 to June 2007 appellant was clearing, inter-alia, goods in DTA. That by an amending Notification No. 29/2007-CE dated 06.07.2007 an explanation was added to Notification No. 23/2003-CE to the effect that inputs received by a 100% EOU from other DTA units, who avail deemed exports benefit as per paragraph 8.3 (a) and (b) of the Foreign Trade Policy (FTP), were to be treated as imported goods. That by virtue of this amendment effective from 06.07.2007 even locally procured raw materials were to be treated as imported goods if suppliers have received deemed export benefits for such supply under Para 8.3 (a) and (b) of the FTP. That since the documents on which inputs were received remained the same, main appellant continued to avail the benefit of exemption as per Serial No. 3 of the Notification No. 23/2003-CE. That appellant continued to file intimations with the department on receipt of each consignment alongwith copies of invoices and AR3As issued by the suppliers. That none of these documents received by the main appellant indicated that suppliers were availing the benefit of Para8.3 (a) and (b) of FTP for the entire period January 2004 to April 2001. That with effect from 12.04.2011 main appellant was allowed to exit and debonded, from 100% EOU by the office of Development Commission KASEZ, for working as a normal DTA manufacturer. That on 27.09.2011 officers of DGCEI started investigating the case. That none of the Directors of the main appellant ever stated that they were aware that any supplier of inputs was availing the benefit of Para 8.3 (a) and (b) of the FTP. That after detailed investigation a show cause notice dated 14.12.2011 was issued demands for differential duty of Rs. 1,33,22,958/- on the grounds that duty on DTA clearance was required to be paid as per Serial No. 2 of table to Notification No. 23/2003-CE, as amended. That main appellant paid an amount of Rs. 1,36,04,312/- during the period 03.10.2011 to 07.11.2011 as their application for debonding was otherwise not being allowed by the concerned authority. That appellants filed reply dated 17.02.2012 to the show cause notice that appellants were not aware of the fact that suppliers were availing the benefit of deemed export Under Para 8.3 (a) and (b) of the FTP. That substitution of explanation with effect from 06.07.2007, about creation of a fiction in respect of deemed export, was not within the knowledge of the appellants and even Divisional Central Excise Officers were also not aware of the charges. That, assessments of raw material procurements as well as DTA clearances were finalized by field staff without raising any objection. That till date it is not established by the Revenue that raw material suppliers have actually availed deemed export benefit Under Para 8.3 (a) and (b) of FTP. That a personal hearing was also held by Adjudicating authority on 09.04.2012 and after holding of hearing, a corrigendum dated 18.06.2012 was issued by the department raising the demand amount to Rs. 4,86,65,605/- as against Rs. 1,33,22,958/- mentioned in the Original Show Cause Notice dated 14.12.2011. That on 23.07.2012 appellant filed further reply to the corrigendum and contested that issuing of corrigendum is not on account of clerical or automatic error but has changed the entire basis of the show cause notice. That Adjudicating Authority has not appreciated the submissions made by the appellant and confirmed the demand and imposed penalties based on the corrigendum issued. Learned Advocate argued that DFIA License could also be allowed under paragraphs 8.4.2, 8.4.3, 8.4.4 (iv) and (v) etc. of the FTP and not only under Para 8.3 (a) and (b). That in the documents received from M/s GHCL Limited (GHCL) only DFIA file number and invoice particular were mentioned which does not give any inclination of Para 8.3 (a) and (b) benefit being availed by the suppliers and that documents have remained same before and after the date (06.07.2007) of amendment in Notification No. 23/2003-CE. It was the case of the Learned Advocate, that when documents were not giving any indication of Para 8.3 (a) and (b) of FTP then there can not be any intention to evade payment of duty on the part of the appellants as they had no way to know whether suppliers of raw material has availed Para 8.3 and (b) benefits. It was also argued that accordingly extended period of limitation can not be made applicable. Learned Advocate made the bench go through the B-17 bonds executed by the main appellant and argued that execution of general B-17 bond can not be considered to hold that time limit of Section 11A of the Central Excise Act 1944 is not applicable for DTA clearances. For this argument. He relied upon the following case Laws:-
(i) Sterlite Optical Technologies Ltd vs. CCE Aurangabad. [2011 (270) ELT 266 (Tri.-Mumbai)].
(ii) CCE Pune-I vs. Emcure Pharmaceutical Ltd. [2014 (307) ELT 180 (Tri.-Mumbai)].
2.1 Shri. P.M. Dave, Advocate further argued that in view of a practice being followed before the amendment appellants were under a bonafide belief that they were correctly availing the benefit of Serial No. 3 of exemption Notification No. 23/2003-CE. He argued that ratio of case Law Bhilosa Industries Pvt. Limited vs. CCE Vapi [2015 (317) ELT 283 (Tri.-Ahmedabad), in Para-10 is squarely applicable to their case and extended period is not invokable, as appellants were filing all the required information/returns with the department.
2.2. That enhancement of duty demand by issuing a corrigendum is not legal because corrigendum issued is not only correction of duty by a typographical or clerical error, but it also changes the rates of duties on the grounds not mentioned in the original show cause notice dated 14.12.2011. For this argument he relied upon the following case Laws:-
(i) Gupta Radio and Watch Company Jaipur vs. CC and CE Jaipur. - [1987 (28) ELT 136 (Tribunal)].
(ii) CC and CE Kanpur vs. Somani Iron and Steels Limited - [2005 (184) ELT 201 (Tri.- Delhi)].
(iv) (iii) Mukesh Dye Works vs. CCE Mumbai-VI. - [2006 (196) ELT 237 (Tri.-Mumbai)].
(v) Castrol India Limited vs. CCE Bangalore. - [2001 (135) ELT 1249 (Tri.- Chennai)].
(vi) Steel Authority Of India vs. CC, Visakhapatnam. [2007 (210) ELT 150 (Tri.-Bangalore)].
(vii) Kathe Steel Rolling Mills Pvt. Ltd vs. CCE and Cus, Aurangabad. - [2000 (115) ELT 145 (Tribunal)].
(viii) Kishore Hemani vs. CC Mumbai. - [2002 (148) ELT 88 (Tri.-Mumbai)].
2.3. That on merits as well as time bar appellants have a strong case and that penalties on the appellants are also not attracted as there is no intention to evade duty.
3. Shri. J. Nagori, Additional Commission (AR) appearing on behalf of the Revenue argued that on merits appellants have not agitated the case before he Adjudicating Authority hence the same can not be raised at the appellate Stage. He made the bench go through Para-43 of the order-in-original dated 08.01.2013.
3.1 Regarding issue of corrigendum learned AR argued that corrigendum was issued only on account of changes in rates of duty with respect to Serial No. 2 of table to Notification No. 23/2003-CE during the demand period and was only arithmetical corrections without changing the basis of the show cause notice. He relied upon the following case laws in support of his arguments:-
(i) Best and Co. vs. CC, New Delhi. - [2009 (239) ELT 294 (Tri.-Delhi)].
(ii) CCE, Cus and S.T. BBSR-I vs. Konark Industries. [2011 270) ELT 671 (Tri.-Kolkata)].
(iii)) Sara Services and Engineer Pvt. Limited vs. CCE, Meerut-I. - [2010 (254) ELT 486 (Tri.-Delhi)].
3.2 On the issue of time barred nature of demand, it was argued by the learned Authorised Representative that extended period is invokable as appellant has accepted the duty liability initially worked out and admitted that supplier M/s. GHCL was availing export benefit under Para 8.3(a) and (b) of Foreign Trade Policy. It was his case that demand is not time barred for which learned AR relied upon the following case laws:-
(i) Novapan India Limited vs. CCE & Cus, Hyderabad [1994 (73) ELT 769 (SC)]
(ii) Saraswati Steel Industries vs. CCE, Rajkot [2002 (148) ELT 1250 (Tri. Del.)]
(iii) CCE, Chennai vs. Peter & Miller Packers [2015-TIOL-652-HC-MAD-CX] 3.3 It was also the case of the learned AR that no time limit is applicable for demanding duty from a 100% EOU who has executed a general B-17 bond. He relied upon the case law of Endress+Hauser Flowtec (I) Pvt. Limited vs. CCE Aurangabad [2009 (237) ELT 598 (Tri. Mumbai)] and made the Bench go through Para 39 of this case law.
4. Heard both sides and perused the case records. Following issues are mainly required to be addressed in these appeals:-
(i) Whether a corrigendum issued after holding a personal hearing in the present proceedings is only a correction of arithmetic error in calculation or has changed the very basis of the original show cause notice dated 14.12.2014?
(ii) Whether no time limit is applicable for raising demands on DTA clearances when a general B-17 bond has been executed by the main appellant?
(iii) If answer to (ii) above is negative whether extended period of 5 years can be invoked in the present proceedings?
(iv) Whether appellants agitated the issue on merits before the Adjudicating authority?
(v) Whether penalties are imposable upon the appellants in these proceedings?
5. So far as issue mentioned at Para 4(i) above is concerned the main show cause notice dated 14.12.2011 was issued demanding duty of Rs. 1,33,22,958/- as duty payable according to Serial No. 2 of table to Notification No. 23/2003-CE. Provisions contained in Serial No.2 were amended periodically under Notification No. 22/2006-CE dated 01.3.2006 and 10/2008-CE dated 01.3.2008. In view of these amendments carried out in Notification No. 23/2003-CE rate of duty, as per Serial No. 2 of the table to this exemption, was required to be reduced by 75% for the period 01.3.2006 to 28.02.2006 and by 50% with effect from 01.3.208. These changes proposed in the corrigendum dated 18.6.2012 have been suggested as per paragraph 2(d) of the corrigendum as follow:-
2(d) In view of the above amendments, as per S. No. 2 of the Table of the said exemption Notification No. 23/2003-Central Excise dated 31st March, 2003, the rate of Basic Customs Duty was reduced by 75% from 01.03.2006 to 28.02.2008 and by 50% with effect from 01.3.2008 and whereas other duties are leviable at full tariff rate on DTA sale of finished goods by a 100% EOU. Thus, M/s. MSPL is liable to pay Basic Customs duty at the rate of 2.5% up to 28.02.2008 and subsequently, w.e.f. 01.3.2008, they were liable to pay Basic Customs Duty @ 5% along with other duties at full tariff rate on DTA sale of their various finished goods. However, M/s. MSPL had paid duty i.e. equal to excise duty as per Serial No. 3 of the table of the aforesaid notification, thereby M/s. MSPL had short paid duty on DTA sale of their finished goods. In the remaining part of the corrigendum, it is proposed that for the words instead of paying an amount equal to 50% of duty leviable under Section 3 of the Central Excise Act, as per Serial No. 2 of the said Notification in the original show cause notice the words instead of paying Central Excise duty leviable under Section 3 of the Central Excise Act, as per Serial No. 2 of the said Notification shall be substituted. However, in Para 2(d) of the corrigendum dated 18.6.2012 the words alongwith other duties at full tariff rate on DTA sale of their finished goods is also added. These words have added altogether new parameter by the investigation through the corrigendum dated 18.6.2012 which was not the subject matter of the original show cause notice dated 14.12.2011. Corrigendum dated 18.6.2012 issued suggesting duty calculations change by virtue of amending Notification No. 22/2006-CE dated 01.3.2006 and 10/2008-CE dated 01.03.2008 is permissible as it does not change the basis of the original show cause notice. But suggesting to change all other duties to be paid at full tariff rate on DTA sale of appellants various finished goods, in Para- 2(d) of corrigendum 18.6.2012, is a new point not coming out from the original show cause notice dated 14.12.2011. We are accordingly of the view that corrigendum dated 18.6.2012 is also changing the very basis of duty demand originally proposed in show cause notice dated 10.12.2011. It is thus not correct on the part of the Adjudicating authority, as held in Para 55 of OIO dated 08.1.2013, that no fresh ground is taken in the corrigendum.
6. Regarding issue at Para 4(ii) above, Revenue is of the argument that when a general B-17 bond has been executed by a 100% EOU then no time limit is applicable. Learned AR has relied upon the order of Mumbai CESTAT in the case of Endress+Hauser Flowtec (I) Pvt. Limited vs. CCE, Aurangabad (supra) and made the Bench go through Para 39 of this order. A carefully reading of this order reveal that issue involved in that case was valuation of the goods cleared in DTA sales and a passing remark was made by the Bench that demand can be raised against a 100% EOU by enforcing B-17 bond without any time limit. It is also observed that the same Bench later in the case of Sterlite Optical Technologies Limited vs. CCE, Aurangabad [2011 (270) ELT 266 (Tri. Mum.)], after considering Endress+Hauser Flowtec (I) Pvt. Limited vs. CCE, Aurangabad (supra) earlier decided by the same Bench, gave an opinion that Section 28 of the Customs Act, 1962 is the only provision to demand duty if the conditions of a notification are not fulfilled. Still a later case law of CESTAT Mumbai in the case of CCE, Pune vs. Emcure Pharmaceuticals Limited (supra) also distinguished the case law Endress+Hauser Flowtec (I) Pvt. Limited vs. CCE, Aurangabad (supra) by making following observations in Para 5:-
5.?We have carefully considered the submissions made by both the sides. From the records it is clearly seen that the respondent had declared to the department that they would be availing the benefit of Notification 23/2003 in respect of advance DTA sales to be effected by them in terms of the permission granted by the Development Commissioner as early as in 2004 itself. Therefore, the respondent cannot be, said to have withheld any information from the department. The respondents plea that they were entitled for the benefit of exemption under Notification 23/2003 under the belief that they were entitled for benefit of such Notification cannot be said to be a mis-declaration as held by the Honble Apex Court in Northern Plastics Ltd. v. Collector of Customs & Central Excise - AIR 1998 SC 2371 = 1998 (101) E.L.T. 549 (S.C.). If the department felt that the respondent was not entitled to such exemption, they should have issued the show cause notice within the period stipulated under Section 11A. Revenues reliance on the decision of the Tribunal in the case of Endress + Hauser Flowtec (I) Pvt. Ltd. (supra) does not come to their rescue for the reason that B-17 bonds are executed not only by the 100% EOUs but also units in the DTA. If Section 11A is applicable in respect of units in DTA who have executed B-17 bonds before the department, the same logic would apply in respect of 100% EOUs as well. Therefore, the argument that merely because the respondent has executed a B-17 bond they would fall outside the purview of Section 11A is illogical and irrational. One cannot interpret the law in such a way so as to make the provisions of law redundant. 6.1 It is also observed from the language of bond B-17 executed by main appellant on 30.6.2004, that the same is mainly with respect to inputs and machinery procured duty free. Rather a subsequent B-17 bond executed on 17.12.2009 in Annexure-I to the bond, gives the duty foregone and involved in the bond. There is no mention of duty with respect to DTA clearances. Para 3 and 11 of the B-17 bond dated 30.6.2004 talks of said goods and to be paid within 10 days of a demand made by such officers. Opening Para of the bond dated 30.6.2004 gives the description of goods as dutiable goods, imported/sourced indigenously by appellant from time to time for manufacture of goods. A bond is executed by a person binding him to pay duty on certain goods which are being allowed duty free or partially exempted i.e. binding him to pay duty forgone at the time of receipt of goods. The enforcement of B-17 bond directly under Section 142(1) of the Customs Act, 1962 will be applicable only to the goods procured duty free because a 100% EOU may take more than 5 years from the date of import/ procurement to fulfil its export promotion. No doubt a Clause in Para 12 of the B-17 bond dated 30.6.2014 exists for goods manufactured and cleared in DTA which reads as follow:-
12. We, the obligators, shall if the articles so manufactured are and are allowed to be sold in India in such quantity and subject to such other limitations and conditions as may be specified in this behalf by the Director General of Foreign Trade, pay duty of excise leviable on such articles under Section 3 of the Central Excise Act, 1944 and shall pay duty of excise leviable on such article under Section 3 of Central Excise Act, 1944 and duty of Customs & Central Excise leviable on the Raw materials/ Component part used in the manufacture of such articles as are not allowed to be sold in India in accordance with the provisions of Exim Policy. No condition so specified in this regard by DGFT has been brought to our notice. As no duty is foregone even Notification No. 23/2003-CE dated 31.3.2003, as amended, does not require execution of a bond for DTA clearances by the appellant when the same is issued under Section 5A(1) of the Central Excise Act, 1944. Main appellant has been filing duty payment returns and all intimations of receipt of inputs which are duly assessed by the jurisdictional Central Excise offices. The duty demand with respect to DTA clearance can not be recovered by enforcing B-17 bond executed by the main appellant, as exemption under Notification No. 23/2003-CE is claimed independently by the appellants and returns filed by the appellants were assessed and debonding allowed. Accordingly, we hold that provisions of Section 11A of the Central Excise Act, 1944 will be applicable for demanding duty from the main appellant in case conditions of Notification No. 23/2003-CE are not fulfilled.
7. Having held that provisions of Section 11A will be applicable in these proceedings it has to be decided whether extended period is invokable as per issue framed at Para 4(iii) above. Adjudicating authority has upheld invocation of extended period on the grounds that appellants have never disclosed to the department that supplier GHCL was taking deemed export benefit under Para 8.3(a) and (b) and that it was the responsibility of the main appellant to take sufficient precautions when availing an exemption notification as department can not presume availment of such benefits. It is observed from the statements of Director of the main appellant Ms. Neepa Mehta and Shri Darshak R. Shah that none of them ever stated that they were having knowledge that GHCL was availing the benefit of Para 8.3(a) and (b) of the FTP. It is only after being explained by the investigation that they stated that GHCL was availing the benefit of Para 8.3(a) and (b). However, there is a force in the arguments of the learned Advocate that none of the documents received by them from M/s. GHCL indicate anywhere that GHCL was availing the deemed export benefit under Para 8.3(a) and (b). It is seen from one such invoice No. 0004806 dated 21.5.2009 that following typed endorsement is existing:-
Supplies without payment of duty under CT-1. DIFA File No. 08/91/076/000 71/AM 09 There is no indication on the documents that GHCL is taking deemed export benefit under Para 8.3(a) and (b) of FTP. It is also observed from the case records that appellant was availing benefit under Notification No. 23/2003-CE on similar documents from January 2004, when said amendment was made operative from 06.7.2007. Main appellant was filing due intimations of receipt of these goods alongwith copies of the invoices. If field formation can not presume that supplier of goods was taking benefit under Para 8.3(a) and (b) of FTP then appellants also can not presume of such benefits being availed by the supplier. There is no evidence on record that appellants were aware of GHCL availing deemed export benefit under Para 8.3(a) and (b) of FTP. Revenue is not able to bring any evidence on record that GHCL has availed the benefit of Para 8.3(a) and (b) of the FTP. It is observed from the case records that M/s. GHCL Limited vide letter dated 28.11.2011 written to Senior Intelligence Officer, Office of the DGCEI, Navarangpura, Ahmedabad did send copies of two DFIA Licenses No. 0810079587 dated 27.4.2009 and 0810081427 dated 14.07.2009. No copy of these DFIA licenses was furnished by the Revenue before the Bench and also there is no indication whether appellants were shown copies of these DFIA licenses during investigation to the fact that these licenses had endorsements of paragraph 8.3(a) and (b) of Foreign Trade Policy on the face of these DFIA licenses. In view of the above, extended period of five years can not be invoked against the main appellant under proviso to Section 11A of the Central Excise Act, 1944 as there is no evidence of prior knowledge and suppression with intention to evade duty on the part of the appellants.
8. Regarding issue at Para 4(iv) above, learned AR argued that on merits appellants did not agitate the issue before the adjudicating authority. On a plain reading of Para 43 of OIO dated 08.1.2013 passed by the Adjudicating authority it is observed that it clearly convey that appellant has not contested their disentitlement to exemption under Serial No. 3 of Notification No. 23/2003-CE. In the statements of the Directors, it is stated that after having understood the aforesaid Notification we say that DTA supplies were received under Para 8.3(a) and (b) as per endorsement made by GHCL on invoices. As already observed actual inspection of some of these invoices does not indicate that supplier availing deemed export benefit of paras 8.3(a) and (b) of FTP. Paras 19.1 and 19.2 of OIO dated 08.1.2013, contained in reply of the appellant to show cause notice are relevant and reproduced below:-
19.1 They further stated that much emphasis was laid by the Revenue on the invoices of M/s. GHCL, but even invoices of this raw material supplier also did not clearly show that they had claimed or availed deemed export benefits under paragraph 8.3 (a) & (b) of the FTP for the goods sold and supplied to them. Since the Revenue had now raised the present dispute, they had closely examined the documents under which GHCL supplied materials to them and they found that only DFIA file number was written on their invoices, but there was no reference at all to para 8.3 (a) & (b) of the FTP on the invoices or ARE-3s of M/s. GHCL also. They were however not aware that DFIA file number shown on the invoices of a raw material supplier would mean that they had availed deemed export benefits under paragraph 8.3 (a) & (b) of the FTP for such supplies and therefore there was o knowledge or information on their part about any such benefits of deemed export having been availed by any raw materials suppliers, and it is also a matter of fact that any of these suppliers had actually not availed any such benefits as was clarified by two raw material suppliers interrogated by the investigating officers in this case.
19.2 They, in the above premises, submitted that Revenue has not established that they were aware that the raw material suppliers had availed deemed export benefits under para 8.3 (a) & (b) of the FTP for the raw materials supplied to them, the Revenue has also not established whether they knew that the raw materials received by them were to be treated as imported goods for the purpose of Notification No. 23/2003-CE, the Revenue has also not established that they were required to pay excise duties on DTA clearances at the rate prescribed underSI.No.2 of the above Notification because they had used raw materials procured in the above manner for manufacture of the finished goods cleared in DTA, and the Revenue has also not established that they had deliberately suppressed certain relevant facts though they knew about the same and that therefore they were guilty of deliberate suppression of facts with an intent to evade payment of Central excise duty on DTA clearances. The larger period of limitation is therefore invoked illegally and without jurisdiction. 8.1 In view of the above, it is not correct to say that appellants have not contested the issue on merits. However, the argument taken by the appellants that DFIA licenses could also be issued under paragraphs 8.4.2, 8.4.3, 8.4.4 (iv) and (v) before this Bench, was not taken up before the adjudicating authority.
9. Regarding issue at Para 4(v) above, as regards imposition of penalties upon the appellants, it is observed for the reasons recorded above that Revenue is not able to bring any evidence on record that appellants were aware of GHCL taking deemed export benefits under paragraph 8.3(a) and (b) of the FTP, therefore, extended period is not applicable and no penalties are imposable upon the appellant.
10. In the light of our observations made in Para 5 above, corrigendum dated 18.6.2012 does change the very basis of the duties calculated in the original show cause notice by also suggesting calculation of other duties at tariff rates. As the corrigendum dated 18.6.2012 has been issued after a period of one year from the relevant date and is accordingly held to be time barred. However, the original show cause notice is issued on 14.12.2011 and the period of demand is 06.7.2007 to April 2011, therefore, the entire period is not time barred. For this matter, the case will be required to be remanded back to the adjudicating authority for quantification after providing documentary evidence to the main appellant that supplies made by the GHCL to the main appellant were under Para 8.3(a) and (b) of the relevant FTP. Needless to say that Adjudicating authority will give an opportunity of personal hearing to the main appellant before deciding this limited issue in remand proceedings, in view of observations made in Para 8 and 8.1 above.
11. Except to the extent indicated in Para 10 above, appeals filed by the appellants are allowed.
(Pronounced in the open Court on 11.08.2015) (P.K. Das) (H.K. Thakur) Member (Judicial) Member (Technical) ..KL 18