Gyro Laboratories Pvt. Ltd. Vs. Commissioner of Central Excise, Mumbai Iv - Court Judgment

SooperKanoon Citationsooperkanoon.com/942983
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided OnJun-08-2010
Case Number APPEAL NO. E/3572/03 - Mum (Arising out of Order-in-Appeal No. PD/176 to 177/M-IV/2003 dated
Judge THE HONOURABLE MR. B.S.V. MURTHY, MEMBER (TECHNICAL) & THE HONOURABLE MR. ASHOK JINDAL, MEMBER (JUDICIAL)
AppellantGyro Laboratories Pvt. Ltd.
RespondentCommissioner of Central Excise, Mumbai Iv
Advocates:Shri D.H. Nadkarni, Advocate for Appellant. Shri. K. Lal, SDR for Respondents.
Excerpt:
per : b.s.v. murthy the appellants are engaged in the manufacture of transformers and supplied transformers to various electricity boards claiming full exemption under notification no.108/95-ce dated 28.8.95. the notification exempted goods when supplied to united nations or international organizations for their official use or supplied to the projects financed by united nations or international organizations. the notification also defines international organizations. the project undertaken by the electricity board were financed by japan bank for international cooperation. duty demand has been confirmed against the appellants on the ground that japan bank for international co-operation is not an organization covered by the declaration of the central government and therefore the appellant is not eligible for exemption. the show cause notice was issued on 28.06.2002 whereas the period during which goods were removed was from 20.12.2000 to 10.11.2001. no penalty has been imposed on the appellant even though the commissioner (appeals) has confirmed the demand beyond the period of limitation. 2. the learned advocate on behalf of the appellants submitted that in this case as clearly mentioned in the show cause notice, the appellant had submitted all the details and the certificates required for removal under exemption notification while filing the classification list and therefore extended period could not have been invoked in this case and he relies upon the following decisions:- 1. polycab wires p. ltd. and anr. vs. cce, vapi - 2009 (90) rlt 161 (cestat-ahmd.) 2. bhanu ivrcl associates vs cce, hyderabad - 2006 (194) elt 460 (tri.-bang.) 3. bharat heavy electricals ltd. vs. cce, kanpur - 2006 (205) elt 564 (tri.-del). 4. jyoti structures ltd. vs. cce and cus., nasik - 2004 (167) elt 226 (tri.-mumbai) 5. danke electricals ltd. vs. cce and cus., vadodara - 2003 (160) elt 414 (tri.-mum) further he also submits that there was no intention to evade duty n view of the fact that the certificates were issued by the organizations under the ministry concerned which are part of the government. under this circumstance he submits that the demand for the period beyond one year prior to the show cause notice cannot be sustained. 3. the learned dr on the other hand submitted that it is not necessary that just because penalty was not imposed under section 11ac of central excise act, 1944, extended period cannot be invoked. 4. we have considered the submissions made by both the sides. 5. it cannot be said that there was an intention to evade payment of duty when all the details were submitted to the department. further we find that electricity board and the government had issued certificates holding that the project was financed by japan bank for international co-operation. in view of the fact that the details had been furnished to the department, extended period could not have been invoked. further we also find that all the decisions cited by the learned advocate are relevant and are applicable to the facts of this case. accordingly the demand for the period prior to 5.6.2001 cannot be sustained. according to the annexure a to the show cause notice, only one removal dated 10.11.2001 is within the time and involves an amount of duty of rs.7,568/- only. in view of the above discussions, the appeal is allowed by way of limitation of demand to the period of one year from the date of show cause notice and accordingly demand for duty of rs.7,568/- only is confirmed. needless to say the interest applicable as per the provisions of law would be payable. appeal is allowed in above terms.
Judgment:

Per : B.S.V. Murthy

The appellants are engaged in the manufacture of transformers and supplied transformers to various electricity boards claiming full exemption under Notification No.108/95-CE dated 28.8.95. The Notification exempted goods when supplied to United Nations or International Organizations for their official use or supplied to the projects financed by United Nations or International Organizations. The Notification also defines International Organizations. The project undertaken by the electricity board were financed by Japan Bank for International Cooperation. Duty demand has been confirmed against the appellants on the ground that Japan Bank for International Co-operation is not an organization covered by the declaration of the Central Government and therefore the appellant is not eligible for exemption. The show cause notice was issued on 28.06.2002 whereas the period during which goods were removed was from 20.12.2000 to 10.11.2001. No penalty has been imposed on the appellant even though the Commissioner (Appeals) has confirmed the demand beyond the period of limitation.

2. The learned Advocate on behalf of the appellants submitted that in this case as clearly mentioned in the show cause notice, the appellant had submitted all the details and the certificates required for removal under exemption Notification while filing the classification list and therefore extended period could not have been invoked in this case and he relies upon the following decisions:-

1. Polycab Wires P. Ltd. and ANR. Vs. CCE, Vapi -

2009 (90) RLT 161 (CESTAT-Ahmd.)

2. Bhanu IVRCL Associates vs CCE, Hyderabad - 2006 (194) ELT 460 (Tri.-Bang.)

3. Bharat Heavy Electricals Ltd. vs. CCE, Kanpur - 2006 (205) ELT 564 (Tri.-Del).

4. Jyoti Structures Ltd. vs. CCE and Cus., Nasik - 2004 (167) ELT 226 (Tri.-Mumbai)

5. Danke Electricals Ltd. vs. CCE and Cus., Vadodara - 2003 (160) ELT 414 (Tri.-Mum)

Further he also submits that there was no intention to evade duty n view of the fact that the certificates were issued by the organizations under the Ministry concerned which are part of the Government. Under this circumstance he submits that the demand for the period beyond one year prior to the show cause notice cannot be sustained.

3. The learned DR on the other hand submitted that it is not necessary that just because penalty was not imposed under Section 11AC of Central Excise Act, 1944, extended period cannot be invoked.

4. We have considered the submissions made by both the sides.

5. It cannot be said that there was an intention to evade payment of duty when all the details were submitted to the department. Further we find that Electricity Board and the Government had issued certificates holding that the project was financed by Japan Bank for International Co-operation. In view of the fact that the details had been furnished to the department, extended period could not have been invoked. Further we also find that all the decisions cited by the learned Advocate are relevant and are applicable to the facts of this case. Accordingly the demand for the period prior to 5.6.2001 cannot be sustained. According to the Annexure A to the show cause notice, only one removal dated 10.11.2001 is within the time and involves an amount of duty of Rs.7,568/- only. In view of the above discussions, the appeal is allowed by way of limitation of demand to the period of one year from the date of show cause notice and accordingly demand for duty of Rs.7,568/- only is confirmed. Needless to say the interest applicable as per the provisions of law would be payable. Appeal is allowed in above terms.