Full Judgment
2. The Revenue has confirmed the demand of duty by denying the benefit of small scale exemption Notification on the ground that value of clearance during the financial year 1999-2000 exceeded Rs. 3 crores.
The show cause notice has been issued on 18.6.2002. Shri Bipin Garg, learned Advocate submitted that Para 3 (a) of Notification No.9/2000-CE dated 1.3.2000 mentions that "for the purpose of determining the aggregate value of clearance for home consumption, clearances which are exempted from the whole of the Excise duty leviable thereon under any other Notification or on which no Excise duty is payable for any other reason shall not to be taken into account. His contention is that the Appellants were under the bona fide belief that as no Excise duty is payable on goods exported to Nepal under bond, the value of such clearance is not to be included in the aggregate value of clearance for home consumption. He, further, submits that Explanation G to Notification that provides for clearance for home consumption shall also include clearances for export to Bhutan and Nepal and submits that as per this Explanation, the value clearance of goods exported to Negal will only be included in the value for clearance for home consumption read with Paragraph 3(a) of the Notification if any excise duty is payable and the value of clearance is not to be included in the aggregate value of the clearances; if no excise duty is payable, that as the Appellants have acted under this bona fide belief, there was no mala fide intention to evade payment of duty and as such extended period of limitation is not attracted for demanding the duty in the present matter. Finally, he submitted that equal amount of penalty is not imposable in the present matter.
3. Countering the arguments Ms. Charu Barnwal, learned Senior Departmental Representative, submitted that in RT 12 Returns filed by them, the appellants had not included the value of clearance of goods exported to Nepal which as per Explanation G to Notification are to be included; that if they had this bona fide belief that the value of clearances of goods exported to Nepal is not to be included in the aggregate value of clearance, there was no need for them to manipulate the RT 12 on account of which the Final Order earlier passed by the Tribunal has been recalled. She contended that as the material fact have been suppressed from the Department, the extended period is invocable and penalty is imposable on the Appellants.
4. We have considered the submissions of both the sides. We do not find any substance in the contention of the learned Advocate that Para 3(a) of Notification No. 9/2000-CE leads to the conclusion for forming a reasonable belief that value of clearance of goods exported to Nepal will not be included in the aggregate value of clearance. This Para suggests that goods on which no excise duty is payable for any reason, their value is not to be included in the aggregate value of clearances.
The goods which are exported under bond are liable to Central Excise duty. These are not goods on which excise duty is not payable. It is not controverted by the Advocate that in RT 12 Returns filed by the Appellants, they had not included the value of clearance of the goods exported to Nepal nor there is any indication that on account of belief held by them, they had not included such value of clearances. We are, therefore, of the view that the material fact has been suppressed from the Department and as such extended period of limitation is invocable.
Accordingly, we uphold the demand of duty. However, we agree with the learned Advocate that this is not a case where equal amount of penalty is imposable. We reduce the penalty to Rs. one lakh only. The Appeal is disposed of in these terms.