Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2014 (4) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (4) TMI 607 - AT - Central ExciseSSI Exemption - clubbing of clearance - Duty demand - Penalty u/s 11AC - Interest u/s 11AB - Whether both the units, Unit No.I and Unit No.II of the Respondent company would be eligible for exemption under notification no.4/97-CE dated 1.3.97 and successor notification no.5/98-CE dated 2.6.98, 618 dated 1.3.2000 and 3/2001-CE dated 1.3.2001 separately - Held that:- two units are manufacturing the same excisable goods, there is not even a dividing walls between the two units. On the contrary the same are within the same compound and with one entry and exit gate and the two units share a common electricity connection and pump house, common boiler and a number of other processes. Therefore, in this case, issue of separate registration for the two units is wrong and notwithstanding the issue of separate excise registration, in view of the Apex Court’s judgement in case of Dhampur Sugar Mills Ltd. (2001 (1) TMI 129 - CEGAT, COURT NO. IV, NEW DELHI), both the units are to be treated as one single factory - two units have to be treated one factory and a common registration certificate issued to them was absolutely incorrect. Since the two units have to be treated as one factory only, they cannot avail the exemption notification no.4/97-CE and its successor notification separately and for the purpose of availment of these exemptions, the clearances of the two units will have to be clubbed. Therefore, the impugned order dropping the duty demand by treating the two units as two separate factories is not correct. As the common registration certificates had been granted in the year 1994 after due verification and thereafter each unit was submitting separate RT-12 Return wherein the availment of exemption under notification no.4/97-CE and its successor notification was being shown. There is no allegation that there was collusion between the assessing officers and the assessee or that any disciplinary action on vigilance grounds has been taken against the assessing officers. In view of this, we hold that the only normal limitation period would be available to the department for recovery of short paid duty which must be quantified by the Commissioner. Since the allegation of wilful mis-statement, suppression of facts or fraud, contravention of provisions of Central Excise Act, 1944 or of the Rules made thereunder with intent to evade the payment of duty is not sustainable, neither penalty under Section 11 AC of the Central Excise Act 1944 or under Rule 173 Q (1) (d) would be sustainable nor the interest on duty under Section 11 AB would be attracted for the period prior to 11.5.2001 as during the period prior to 11.5.2001, demand of interest under Section 11AB on the duty short paid, not paid or erroneously refunded was linked with such non-payment, short payment or erroneous refund having taken place due to wilful mis-statement, suppression of facts or fraud etc. on the part of the assessee - Decided partly in favour of Revenue.
|