Judgment:
Shri S.S. Kang, Vice President
Heard both sides.
2. Appellant filed this appeal against the adjudication order passed by the Commissioner of Central Excise whereby a demand of Rs.30,45,573/- is confirmed with interest and penalty is also imposed. The demand is confirmed after denying the benefit of Notification No. 10/97-CE dated 1.3.1997.
3. The appellant is engaged in manufacture of cables. During the period from 1998 to March, 2002, the appellants cleared various consignments of cables to Indira Gandhi Centre for Atomic Research, Bhabha Atomic Research Centre, INSAT - Master Control facility, Vikram Sarabhai Space Centre of Indian Space Research Organization by availing the benefit of Notification No. 10/97-CE.
4. A show-cause notice was issued on 2.5.2003 alleging suppression of facts with intent to evade payment of duty and for denial of the benefit of notification. The adjudicating authority confirmed the demand by invoking extended period of limitation on the ground of mis-declaration.
5. The contention of the appellant is that the appellant at the time of clearances of the goods filed necessary declaration under Rule 173B of the Central Excise Rules and along with declaration the requisite certificate as required under the Notification by the competent authority was also filed. The goods were cleared under the excise invoices showing nil rate of duty under Notification No. 10/97-CE. As the appellants were clearing the goods by informing the Revenue, therefore, the allegation of suppression of facts and mis-statement is not sustainable and the demand is time barred.
6. Revenue argued on merits and submits that cables cannot be considered necessary as spares/parts of the Scientific and Technical instruments, apparatus, equipment as required in the said notification. Hence, the appellants are not entitled for benefit of the notification and the appellants have wrongly availed the benefit of notification on the same when the same are cables. Therefore, it is a clear case of mis-declaration with intent to evade payment of duty. Revenue also submitted that limitation is not applicable in the case of violation of the condition of Notification. Revenue relied upon the findings of the lower authority.
7. We find that the show-cause notice was issued on 2.5.2003 demanding duty for the period from 1998 to March, 2002 by invoking extended period of limitation. We find that the appellants were clearing cables by filing necessary declaration as required under Rule 173B of the Central Excise Rules by claiming the benefit of Notification along with a certificate issued by the competent authority as required under Notification No. 10/97. The goods were cleared under excise invoices and in the invoices rate of duty was mentioned as ‘Nil’ by claiming the benefit of Notification. Appellants were filing regularly monthly returns. Hence, the allegation of mis-statement and suppression of facts with intent to evade payment of duty is not sustainable.
8. In these circumstances, the appeal filed by the appellants is allowed on the ground of time bar without going into merit of the case.
9. The cross-objection filed by the Revenue is also disposed of at the same time.