Page 175 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] CANPEX CHEMICALS PVT. LTD. v. CC. (EXPORT), NHAVA SHEVA, RAIGAD 397

ities of the appellants. The appellants have kept the department informed about
their intention to claim exemption under the above said Notification vide their
letters dated 12-11-2003 and 15-3-2005. The test conducted in 2003 was in favour
of the appellants. It was free for the department to get another test conducted in
2005 also. This having not done, extended period cannot be invoked. Suppres-
sion of fact cannot be alleged on the basis of statements of dealers to conclude
that the goods cleared in the past are also similar to the goods tested. Unless such
goods are available and tested, nature of the goods cannot be established on the
basis of oral submissions. Therefore, we find that the invocation of extended pe-
riod is not tenable. Therefore, we find that the demand for period prior to 5-2-
2006 is barred by limitation. Therefore, the classification prior to 5-2-2006 is of no
help to the case. For quantification of the duty for the normal period, the case
needs to be remitted to the original authority.
6.3 We find that during the course of investigation, polypropylene mul-
tifilament yarn weighing 912.18 kg. and 4192.11 kg was seized at Bangalore and
Madurai. As the department relies upon the test report obtained on 21-9-2006,
apparently in favour of the department, we hold that the same cannot be applied
retrospectively and to the goods cleared before the test report. Therefore, we
cannot uphold the confiscation of the goods, as no mala fide intention of the ap-
pellants is evident as discussed above. Therefore, looking into the circumstances
of the case, we find that confiscation and imposition of fine in lieu of confiscation
on the above goods cannot be justified. However, we find that the Department is
free to collect the applicable duty on the said goods. As we hold that extended
period cannot be invoked, penalty under Section 11AC is liable to be set aside.
Penalty imposed on M/s. A.R. Trading Company under Rule 25 and penalty im-
posed on Shri T. C. Vijayan of Usha Traders, Madurai under Rule 26 of Central
Excise Rules, 2002, are also liable to be set aside.
7. In view of the above, the appeal is partially allowed by way of re-
mand to the original authority with a direction to restrict the duty demanded to
the normal period. We set aside penalties imposed under Section 11AC and Rule
25/26 on the appellants. Redemption fine is also set aside.
(Order was pronounced in Open Court on 20-12-2019.)
_______

2020 (372) E.L.T. 397 (Tri. - Mumbai)

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI
S/Shri C.J. Mathew, Member (T) and Ajay Sharma, Member (J)
CANPEX CHEMICALS PVT. LTD.
Versus
CC. (EXPORT), NHAVA SHEVA, RAIGAD
COMMR. OF CUS. (EXPORT), NHAVA SHEVA, RAIGAD
CC. (EXPORT), NHAVA SHEVA, RAIGAD
Final Order No. A/87214/2019-WZB, dated 30-10-2019 in Appeal No.
C/88059/2013
Refund of import duty - Relinquishment of goods - In terms of Section
26A of Customs Act, 1962 three conditions to be fulfiled simultaneously along
EXCISE LAW TIMES  1st May 2020  175