ORDER
Gowri Shankar, Member (T)
1. Steel Authority of India Limited, the appellant before us, imported a consignment of monoblock stoppers in February, 1993. It claimed and was granted in respect of this consignment the benefit of the exemption contained in notification 203/92. Notice dated 3.9.1997 was issued to it proposing to recover the duty foregone by extending the exemption under that notification. The notice alleged that the benefit of exemption was not available to the goods for the reason that modvat credit had been availed of in the manufacture of products, consequent upon export of which an advance licence, carrying with it the right to claim the benefit of the exemption, was issued. The importer’s stand in the reply to the notice was that it had availed of the amnesty scheme promulgated by the Government of India The Commissioner did not accept this stand; he found that the amnesty scheme was not available to the importer for the reason that a small part of the interest, Rs. 27.30 lakhs, payable on the modvat credit had been paid on 7.2.1997, after the expiry of the period provided for availing of the modvat scheme. He therefore confirmed the proposal in the notice and imposed penalty.
2. The principal contention of the counsel for the appellant is that the extended period of limitation invoked in the notice is not available. The notice cites the following as the basis for invoking the extended period contained int eh proviso under sub-section (1) of the Section 28 of the Act:
“However, the said fact of availment of input stage credit was deliberately suppressed or wilfully mis-stated by the licence holder in the various shipping documents namely shipping bills, AR4s etc. and a false declaration was made in the various shipping bills regarding non-availment of benefit under rule 57A with fraudulent intention to avail undue duty benefits.”
3. Apart from the obviously untenable position that the notice is unable to make up its mind whether the importer misstated facts or suppressed (since it uses both the expressions), we do not find this contention of either misstatement or suppression of facts supported by any evidence. The counsel for the appellant has produced before us a photocopy of a shipping bill No. 3404 dated 4th August, 1992 filed by the appellant for export of prime mild steel hot rolled plates. This photocopy does not contain any statement relating to availing or not availing of modvat credit. The copies of the AR4 forms SP-58-V-58, SP-59-V-9, SP-60-V-60, SP-61-V-61, the first two dated 26.7.92, the third 29.7.1992 and the fourth dated 2.8.1992, also do not contain anything relating to modvat credit. The contention in the notice a false declaration was made in the shipping bill with fraudulent intention to avail of duty exemption is thus clearly wrong. The extended period of limitation therefore will not be available.
4. In the light of this finding, we do not consider it necessary to deal with the arguments of the counsel for the appellant that except for the amount of Rs. 27.3 lakhs, the entire amount of duty and interest had been paid by reversal of modvat credit as provided in the orders of the Government of India relating to the amnesty scheme, within the time specified for availing of the scheme and on that basis various other Commissioners has passed orders dropping other proceedings initiated against the appellant on the same ground.
5. We might add in this context that on 6.12.2000 we gave an opportunity to the departmental representative to rebut, if he chooses, the authenticity of these photocopies. Despite seven months having passed the departmental representative is still not able to produce the originals, which must be in the finals of the Commissioner, or to produce any other evidence to question the veracity of the copies. We have therefore necessarily to conclude that the department is not in a position to say that the photocopies tendered are not true representations of the originals.
6. The appeal is accordingly allowed and the impugned order set aside.