JYOTI STRUCTURES LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE facts leading of filing to these appeals are, in brief, as under: -

(2.) SHRI Mayur Shroff, ld. Counsel for M/s. Jyoti, pleaded that the goods, in question, had been supplied to the project being implemented by APTRANSCO and which was approved by the Government of India and was being financed by Japan Bank of International Corporation (JBIC), that they were under bona fide impression that the project finance -JBIC is an International organisation as the project had been approved by the Government of India and a certificate in this regard signed by the Project implementing authority (APTRANSCO) and countersigned by the Secretary to the Government of Andhra Pradesh had been produced, that it is only subsequently that M/s. Jyoti came to know that JBIC is not international organization in terms of the clarification issued by C.B.E. & C. in this regard, that immediately thereafter, M/s. Jyoti stopped making the duty free supplies to APTRANSCO, that before availing the exemption under Notification No. 108/95 -C.E., the appellant had filed the required declaration with the jurisdictional Central Excise Authority in this regard, that the jurisdictional Central Excise Authorities vide letter dated 14 -5 -2001 had allowed them to clear the goods by availing duty exemption under Notification No. 108/95 -C.E., that in view of this position, even if it is held that M/s. Jyoti are not eligible for exemption, the longer limitation period under proviso to Section 11A(1) would not be available to the department and accordingly, the duty demand of Rs. 86,12,753/ - raised vide show cause notice dated 23 -5 -2003 for the period from August, 2000 to December, 2001 would be totally time -barred, that in the circumstances of the case, neither penalty under Section 11AC of the Central Excise Act nor penalty under Rule 25(1) of the Central Excise Act, 2002 would be imposable on M/s. Jyoti, that the demand is also not unsustainable as in terms of the Foreign Trade Policy, the supplies made by M/s. Jyoti to the Project being implemented by APTRANSCO are to be treated as deemed exports and even if the duty is paid by M/s. Jyoti, they would be eligible for its deemed export rebate from DGFT and this is a revenue neutral situation and that in any case in respect of duty demand within time, the Appellant would be eligible for cum -duty benefit i.e. abatement of duty from the price for the goods received from APTRANSCO. He, therefore, pleaded that the impugned order is not correct.

(3.) MS . Ranjana Jha, learned Joint CDR, defended the impugned order by reiterating the findings of the Commissioner in it and pleaded that it is not disputed that JBIC is not an International Organization and hence, the Simhadri Project financed by JBIC, which was implemented by APTRANSCO as Project implementing Authority, was not eligible for supply of duty free goods in terms of the exemption Notification No. 108/95 -C.E., that the appellants have suppressed the relevant facts from the department and hence, extended period under proviso to Section 11A(1) had been correctly invoked and penalty on M/s. Jyoti under Section 11AC and on APTRANSCO under Rule 26 of the Central Excise Rules had been correctly imposed and that mala fide of the Appellants is clear from the fact that APTRANSCO had not sought exemption under this notification in respect of certain goods procured for the same project from BEHL. She, therefore, pleaded that there is no infirmity in the impugned order.