Custom, Excise & Service Tax Tribunal
Pune I vs Emcure Pharmaceuticals Ltd on 16 April, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: E/1308/2010
[Arising out of Order-in-Original No: 08/CEX/2010 dated 19/04/2010 passed by the Commissioner of Central Excise, Pune I.]
For approval and signature:
Honble Shri P.R. Chandrasekharan, Member (Technical)
Honble Shri Anil Choudhary, Member (Judicial)
1.
Whether Press Reporters 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?
:
Yes
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
Commissioner of Central Excise
Pune I
Appellant
Vs
Emcure Pharmaceuticals Ltd.
Respondent
Appearance:
Shri Ahibaran, Additional Commissioner (AR) for the appellant Shri A. B. Nawal, Cost Accountant with Mrs. K.R. Rathi, Advocate for the respondent CORAM:
Honble Shri P.R. Chandrasekharan, Member (Technical) Honble Shri Anil Choudhary, Member (Judicial) Date of hearing: 16/04/2014 Date of decision: 16/04/2014 ORDER NO: ____________________________ Per: P.R. Chandrasekharan:
Revenue is in appeal against Order-in-Original No: 08/CEX/2010 dated 19/04/2010 passed by the Commissioner of Central Excise, Pune I Commissionerate.
2. Vide the impugned order, the learned adjudicating authority has set aside the demand of duty on M/s. Emcure Pharmaceuticals Ltd., amounting to ` 2,20,95,478/- as time-barred and accordingly dropped the proceedings initiated vide show cause notice dated 03/07/2009. Aggrieved of the same, the Revenue is before us.
3. In their appeal memorandum it has been urged that under the self-removal procedure, it is the responsibility of the assessee to determine and discharge correct duty liability and, therefore, if this responsibility cast on the assessee is not discharged, then duty demands can be enforced in terms of the B-17 bond executed without any time-limit. Reliance is placed on the decision of the Tribunal in the case of Endress + Hauser Flowtec (I) Pvt. Ltd. vs. Commissioner of Central Excise, Aurangabad 2009 (237) ELT 598.
3.1. The learned Additional Commissioner (AR) appearing for the Revenue reiterates the grounds urged in the appeal memorandum.
4. The learned counsel for the respondent submits that the impugned order merits to be sustained inasmuch as the appellant had intimated to the department vide letter dated 14/06/2004 informing the jurisdictional Dy. Commissioner that they had obtained permission for advance DTA sale and they would be effecting clearances on payment of appropriate Central Excise duty. In the ER-2 returns filed by the respondent, the respondent had clearly indicated that they have been effecting advance DTA clearances under Notification 23/2003. Thus, the fact of clearing the gods at concessional rate of duty was clearly know to the department. Despite such declarations, show cause notice dated 03/07/2009 has been issued demanding duty for the period April 2004 to March, 2006 and therefore, the demands are clearly time-barred and accordingly he pleads that the impugned order be upheld.
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. vs. Collector of Customs & Central Excise AIR 1998 SC 2371. 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. In these circumstances, we find no merit in the appeal filed by the Revenue. Accordingly, we dismiss the same as devoid of merits.
(Dictated in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) */as 5