- (1.) The Appellant -Assessee is engaged in the manufacture of CD (Recordable) and CD -ROM falling under Chapter Heading 85 of the Central Excise Tariff Act, 1985. It is a 100% EOU unit and with that character, the Appellant is entitled to import raw material as well as capital goods and other goods specified in the EXIM policy and Custom Notification No. 53/97 -Cus., dated 3 -6 -1997 without payment of duty. It is also an admitted case that as a 100% EOU, the Appellant is also entitled to procure raw materials, capital goods and all other goods specified in the EXIM policy under the Excise Notification No. , dated 4 -1 -1995 without payment of excise duty under CT3 certificate. It had imported certain materials, viz., Epoxy Resin, Pyrolytic Reflective Toughened glass, Silicon Adhesive and sealant, cold rolled M.S. Dec Profile Sheets, etc., after taking permission from the Development Commissioner, Government of India, which was granted to the Appellant vide orders dated 13 -9 -2000.
(2.) The case of the Appellant was that the aforesaid goods were for captive use which were required for the purpose of manufacturing CD (Recordable) and CD -ROM and were also to be used in connection with the production of the aforesaid items and therefore, no duty was paid. The Revenue, however, was of the opinion that some duty free items claimed by the Appellant as capital goods were used for construction and decoration of the factory building and therefore, were not entitled to the exemption in terms of Notification No. 53/97 -Cus. or Notification No. 1/95 -C.E. It resulted in the issuance of Show Cause Notice dated 27 -3 -2002 and the demand mentioned in the said notice was confirmed after hearing the Appellant. The Commissioner also confirmed the said demand. Even the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT') has affirmed the order of the authorities below thereby dismissing the appeal of the Appellant herein. However, insofar as the penalty that was imposed by the Adjudicating Authority is concerned, that has been set aside by the CESTAT on the ground that the declaration submitted by the Appellant was bona fide and not contumacious.
(3.) We would also like to state here that the Show Cause Notice dated 23 -7 -2002 was beyond the normal period of limitation prescribed Under Sec. 28 of the Customs Act and therefore, provisions of proviso to that Sec. was invoked to claim the extended period of limitation. The Appellant had specifically raised the issue that the notice was time barred and it was not permissible for the Revenue to seek shelter under the proviso to Sec. 28 inasmuch as there was no misdeclaration or misstatement on the part of the Assessee -Appellant in the declaration that was filed by it while clearing the aforesaid goods.;