2025 (5) TMI 1754 - AT - Central Excise

Removal of 650 PCC Poles lying outside the factory premises without proper documentation and duty - embossing of the manufactured PCC Poles with the mark WBSEDCL constitutes branding qualifying for SSI exemption or not - mismatch in ER-1 and ER-3 returns - invocation of extended period of limitation. Removal of 650 PCC Poles lying outside the factory premises without proper documentation and duty - HELD THAT - For the contention of duty liability on the broken poles amounting to Rs.2, 46, 722/- it is not agreed with the contention of the Revenue. For such 933 broken poles worked out in accordance with the number of poles supplied to WBSEDCL during the period 2008-09 and 2013-14 (upto November) it is not disputed that the products have no market value. The products cannot be considered as manufacture till the stress test is successfully undertaken hence no duty would be payable on such destroyed goods lost in the testing process. In this regard it is noted that the appellant has also contended that they admitted their lapse by not applying for remission of duty under Section 5 of the Central Excise Act in respect of such destroyed/damaged poles. For this reason there is no revenue implication for this and we do not find any malafide on the part of the appellant in the matter. Embossing of the manufactured PCC Poles with the mark WBSEDCL constitutes branding qualifying for SSI exemption or not - HELD THAT - There are no merit in the plea of the Revenue that embossing with WBSEDCL rendered the manufactured goods as branded products thereby denying them the SSI exemption - The embossing cannot be considered as a brand name and it would only seek to indicate exclusivity to suggest that such poles belong to WBSEDCL. It is also on record that WBSEDCL for themselves are not engaged in selling of such PCC Poles to other persons in the course of trade. Therefore the said mark is indicative only of the sole ownership and exclusivity of use of such PCC Poles by WBSEDCL. Mismatch in ER-1 and ER-3 returns - invocation of extended period of limitation - HELD THAT - The show cause notice has been issued to the appellant incorporating the extended period of limitation. It is an admitted position that the ER-1 was regularly filed on which basis the show cause notice itself has been issued. Under these circumstances no clause for suppression/misstatement can be invoked and extended period of limitation will not be applicable. It is therefore clear that the period upto January 2013 is barred by limitation and therefore the demand for the period 2009-10 to 2013-14 upto November 2013 on this count would not survive. Conclusion - i) The demand relating to removal of poles outside factory premises without documentation set aside as the duty was paid and no malafide was found. ii) The duty demand on broken poles destroyed in testing rejected. iii) The denial of SSI exemption due to embossing overturned. iv) The demand based on return mismatches was barred by limitation and therefore unsustainable. Appeal allowed.

Summary

The core legal questions considered by the Tribunal include: (1) Whether the removal of 650 PCC Poles lying outside the factory premises without proper documentation and duty payment violated provisions of the Central Excise Rules, 2002; (2) Whether the damaged/broken PCC Poles subjected to strength testing and subsequently rejected are liable to duty; (3) Whether the embossing of the manufactured PCC Poles with the mark "WBSEDCL" constitutes branding that disqualifies the appellant from claiming Small Scale Industry (SSI) exemption under Notification No.8/2003-CE; (4) Whether the demand raised on account of mismatch in ER-1 and ER-3 returns filed by the appellant, including invocation of extended period of limitation, is sustainable.

Regarding the first issue, the relevant legal framework comprises Rule 4, Rule 10, and Rule 11 of the Central Excise Rules, 2002, which govern the removal of excisable goods, maintenance of daily stock accounts (DSA), and issuance of invoices respectively. The Revenue contended that the 650 PCC Poles, found outside the factory premises, were removed without proper reflection in the DSA and without issuance of invoices, thus evading duty. The appellant admitted the presence of these poles outside the premises due to space constraints and asserted that duty was paid upon detection. The Tribunal noted that the poles were manufactured for a specific order for WBSEDCL and that the delay in removal was temporary. The Court observed that the appellant rectified the duty lapse by paying the requisite duty once pointed out. Applying the law to the facts, the Tribunal found no malafide intention or deliberate evasion by the appellant. The removal outside the premises without immediate dispatch was not tantamount to unauthorized removal without duty payment, especially as the duty was subsequently paid. The Tribunal thus concluded that the Revenue's demand on this ground lacked merit.

The second issue pertained to the liability of duty on damaged or broken PCC Poles that failed the mandatory strength test under IS 1678-1960. The testing procedure requires one pole out of every 100 to be tested for structural integrity; failure results in the pole being unfit for use and having no market value, even as scrap. The appellant contended that such poles are not entered in the DSA and do not attract duty since they are effectively destroyed goods. The Tribunal referred to the appellant's admission of not applying for remission of duty under Section 5 of the Central Excise Act for these destroyed goods but accepted that no duty is payable on goods lost during testing. The Supreme Court precedent cited by the appellant affirmed non-levy of duty on damaged/destroyed goods during testing. The Tribunal held that since the broken poles have no market value and are not considered manufactured goods until passing the test, duty liability does not arise. The Revenue's demand of Rs.2,46,722/- on this account was rejected.

The third issue involved the denial of SSI exemption under Notification No.8/2003-CE for the period 2008-09 to 2012-13, amounting to Rs.80,85,514/-. The Revenue argued that embossing the goods with "WBSEDCL" constituted branding or trade marking, thereby disqualifying the appellant from SSI benefits. The Tribunal examined the statutory definition of "brand name" or "trade name" under the Notification, which includes marks used to indicate a connection in trade between goods and a person using such mark. The appellant maintained that the embossing merely indicated ownership by WBSEDCL and was not a brand or trade name used in commerce. The Tribunal noted that WBSEDCL itself does not trade in PCC Poles and that the embossing signified exclusivity of use rather than branding. Reliance was placed on a prior Tribunal decision where manufacturing goods for a client without the client trading the goods did not negate SSI exemption. Applying this principle, the Tribunal held that the embossing did not amount to branding and the appellant was entitled to SSI exemption. The Revenue's contention was therefore rejected.

The fourth issue concerned a demand of Rs.12,72,706/- based on discrepancies between ER-1 and ER-3 returns filed by the appellant for 2009-10 to 2012-13. The Revenue invoked the extended period of limitation on the ground of suppression or misstatement. The appellant conceded the mismatch but argued that the ER-1 returns were regularly filed and the extended period cannot be invoked without evidence of suppression. The Tribunal observed that the show cause notice was issued based on ER-1 returns and there was no material to establish suppression or fraud. Consequently, the extended period of limitation was held inapplicable. The demand for the period prior to January 2013 was thus barred by limitation and could not be sustained.

The Tribunal treated the competing arguments with careful scrutiny. The Revenue's reliance on procedural lapses and technical non-compliances was balanced against the appellant's rectification efforts, lack of malafide intent, and established legal principles on duty liability for destroyed goods and SSI exemption. The Tribunal emphasized the statutory definitions and prior judicial precedents to distinguish between ownership marks and brand names, and to clarify the scope of limitation provisions.

Significant holdings include the Tribunal's explicit statement that "the embossing cannot be considered as a brand name and it would only seek to indicate exclusivity to suggest that such poles belong to WBSEDCL," affirming the principle that marks indicating ownership without commercial branding do not negate SSI exemption. The Tribunal also held that "the products cannot be considered as manufacture till the stress test is successfully undertaken, hence no duty would be payable on such destroyed goods lost in the testing process," reinforcing the non-levy of duty on goods destroyed during mandatory testing. On limitation, the Tribunal concluded that "no clause for suppression/misstatement can be invoked and extended period of limitation will not be applicable" where returns are regularly filed and no suppression is established.

The final determinations were as follows: the demand relating to removal of poles outside factory premises without documentation was set aside as the duty was paid and no malafide was found; the duty demand on broken poles destroyed in testing was rejected; the denial of SSI exemption due to embossing was overturned; and the demand based on return mismatches was barred by limitation and therefore unsustainable. Consequently, the Tribunal set aside the order of the lower authority and allowed the appeal.