ORDER
Gowri Shankar, Member(Technical)
1. The applications are for waiver of deposit of duty of Rs. 1.08 crores and penalty of equivalent amount under Section 11AC of the Act and Rs. 10 lakhs on NS Patel, director finance of the manufacturer.
2. Elecon Engineering, the manufacturer was awarded on 5.5.98 a contract by Maharashtra State Electricity Board (MSEB for short) for setting up a coal handling plant in a thermal electricity generation station which the letter was setting at Chandrapur. By a certificate dated 6.1.98 it had been informed by MSEB that the project was funded by the International Bank for Reconstruction and Development, the World Bank. Notification 108/95 exempts goods supplied to such project. The manufacturer intimated the department of its proposal to avail of the notification and cleared between June 1998 to December 1999 various consignments without payment of duty in terms of notification.
3. By 22.10.96 the World Bank had suspended the loan to MSEB apparently because some of the conditions on which loan was to be disposed had not been complied with. We are not at all clear what exactly become subsequently. It is clear that World Bank closed the loan intimated by letter of MSEB dated 30.6.98.
4. It appears that various subsequent development took place as a result of discussion between the Government of India and Government of Maharashtra, so as to provide some relief to some contractors which were concerned with project. None of these relate to the applicant before us.
5. The department issued to the manufacturer the notice dated 14.2.2000. By this notice, duty was demanded on the clearance which had been made by claiming the benefit of the notification. The notice alleged that since funding by IBRD had been withdrawn, the Chandrapur project was no longer a World Bank project and the benefit of the notification would not to be available. The notice invoked the extended period contained in the proviso under sub-section (1) of section 11A of the Act on the ground that the manufacturer had wilfully evaded duty by conniving with MSEB. In the order impugned before us the Commissioner has confirmed the demand for duty and imposed a penalty proposed in the notice and imposed penalty on the director finance.
6. We have heard both sides.
7. The common counsel for the applicants contended that the extended period of limitation would not be available to the department for the reason that the applicant did not come to know, till the visit of the officers in connection with an enquiry in December 1999, that no payments had been made by World Bank to MSEB in pursuance of the loan after September 1996. He also contended that the fact of the loan closed on 30.6.98 was also not known. We find this contention somewhat difficult to accept. The show cause notice does not cite formally indicating the loan closing date to be 30.6.98. Whether the applicant was told by the MSEB or knew from its frequent contract with the officers of MSEB that no payment was made in terms of the loan after June 1998, needs careful examination. However, we have to go by the contents of the notice and the material relied upon in that notice. This material prima facie does not indicate that the applicant was aware of the expiry of the loan in June 1998 or had been informed of its suspension in 1997. The Commissioner has prima facie not indicated clearly the material on the basis on which she says the extended period would apply. A reference to other persons such as Ministry of Finance, Government of India being informed does not indicate the acquisition of knowledge by the manufacturer before us.
8. Having regard to these facts, on limitation, we accept the offer made by the advocate to deposit Rs.25 lakhs within two months from today. On such deposit, we waive deposit of the remaining duty and penalty on both applicants.
9. By order dated 20.2.01 of the Dy. Commissioner, goods valued at Rs. 2.52 crores had been detained for recovery of the amount demanded in the order impugned before us. That order is hereby vacated forthwith. Compliance on 29.5.01.