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Central Excise - Case Laws
Showing 1 to 20 of 40 Records
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2020 (11) TMI 1004
Pay fixation in respect of employees appointed to Selection Grade in Pre-revised between 1-1-1986 and 12-9-1986 - M.R.O.M.No.7(21)-E.III(A)/74 dated 10-1-1977 - HELD THAT:- If at all the writ petitioner is aggrieved regarding the grant of increment with effect from 01.02.1999 he should have filed appropriate application before the Central Administrative Tribunal along with his colleague during the relevant point of time. Contrarily, he cannot file a litigation seeking the very same benefit after several years, since the case filed by his colleague has attained finality. Such an attitude of a Government Servant cannot be encouraged by the Courts. An aggrieved person should approach the court of law within a reasonable period of time. Especially, the writ petitioner was working in the responsible post of Inspector of Central Excise. Thus, he is aware of the rules and regulations and as well as the service rights.
Whenever his service conditions are affected he is at liberty to approach the competent forum for redressal. Contrarily, he cannot file a writ petition based on the orders passed in some other case with reference to the Original Application filed before the Central Administrative Tribunal in the year 2005. If such writ petitions are entertained, all other retired employees will approach this Court after a lapse of many years seeking the similar relief. Thus, the said conduct of the writ petitioner in approaching the Court of law belatedly cannot be encouraged.
The present writ petition is filed by the writ petitioner at the age of 68 years after a lapse of 10 years from the date of retirement seeking the benefit of arrears of increment from 01.02.1999. Now, he would be around 74 years. Thus being the factum established, the writ petitioner undoubtedly slept over his right and therefore, he cannot wake up one fine morning and knock the doors of the Court for seeking remedy - Petition dismissed.
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2020 (11) TMI 976
Maintainability of petition - Territorial Jurisdiction - Petitioner approached this Court instead of High Court of Karnataka at Bangalore - Principle of forum conveniens - HELD THAT:- The reason stated by the Petitioner for having approached this Court instead of High Court of Karnataka at Bangalore is that the 'seat of authority' of the First Respondent is situated at Chennai within the territorial limits of jurisdiction of this Court. Even if it is assumed that in addition to the High Court of Karnataka, this Court would also have territorial jurisdiction, the principle of forum conveniens would come into play as held by the Division Bench of this Court in C. RAMESH VERSUS THE DIRECTOR GENERAL OF POLICE, THE INSPECTOR GENERAL OF POLICE, [2013 (6) TMI 888 - MADRAS HIGH COURT].
There does not appear to be any justification to entertain the Writ Petition for the relief sought in this Court - Petition dismissed.
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2020 (11) TMI 893
CENVAT Credit - input services - sales commission paid to sister concern - outward transportation from factory to the buyers premises for the period from April 2008 to April 2010 - HELD THAT:- As per clause (3) of the Agreement entered into between the appellant and FMGIL, FMGIL promotes sale of products of the appellant by doing various activities including promotion and marketing of the products of the appellant, seeking orders, assistance in sale of products, maintaining good relations with customers, providing consultation and advice in relation to the above, receiving orders from customers in relation to the products, notifying the customers/prospective customers of all the terms and conditions of sale as determined by the appellants. Further, the input service as defined under Rule 2(l) of CENVAT Credit Rules, 2004 explicitly includes activity of sales promotion and the explanation to Rule 2(l) of CENVAT Credit Rules, 2004 inserted by Notification No.2/2016- CE(NT) dated 3.2.2016 holding that sales promotion includes services by way of sale of dutiable goods on commission basis - also, this explanation added by way of amendment is declaratory in nature and is applicable retrospectively.
The Board vide Circular No.96/85/2015-CX dated 7.2.2015 has clarified that decision in the case of COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD – II VERSUS M/S CADILA HEALTH CARE LTD. [2013 (1) TMI 304 - GUJARAT HIGH COURT] applies in case where the agent is undertaking only sales and no sales promotion. Whereas in the present case, it is clearly evident from various terms and conditions contained in clause (3) of the Agreement that M/s. FMGIL undertakes the activity of sales promotion. Hence, we hold that the decision in the case of Cadila Healthcare Ltd. is not applicable in the present case. This issue is no more res integra and it has been consistently held that sales commission fall under definition of ‘input service’. By following the ratio of the above said decisions, the denial of CENVAT Credit on sales commission is not sustainable in law.
Time Limitation - CENVAT credit on outward transportation from factory to the customers’ premises - HELD THAT:- On the point of limitation, the Division Bench of this Tribunal in the case of M/S SANGHI INDUSTRIES LTD. VERSUS C.C.E. KUTCH (GANDHIDHAM) [2019 (2) TMI 1488 - CESTAT AHMEDABAD], the Division Bench has dealt with the issue of limitation and has held that the outward GTA was the matter under litigation and for that reason the Government has to come out with clarification thereafter the matter was subject to various litigation before Tribunal, Hon’ble High Courts and Hon’ble Supreme Court, therefore no malafide intention can be attributed to the appellant, therefore, wherever the demand is for extended period, the same will also not be sustainable on the ground of time bar also.
Appeal disposed off.
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2020 (11) TMI 843
CENVAT Credit - input service - Deposit Insurance and Credit Guarantee Corporation to the banks for insuring the deposits of the public - HELD THAT:- The issue decided in the case of BANK OF MAHARASHTRA, BANK OF BARODA (FORMERLY KNOWN AS DENA BANK) , BANK OF BARODA, UNION BANK OF INDIA, STATE BANK OF INDIA VERSUS COMMISSIONER, CGST & CX, PUNE-II, COMMISSIONER OF SERVICE TAX-I AND IV, MUMBAI, COMMISSIONER OF CENTRAL EXCISE [2020 (10) TMI 300 - BOMBAY HIGH COURT], where it was held that All the appeals are remanded back to the CESTAT for fresh decision in conformity with the decision rendered by the larger bench.
Appeal is remanded back to the CESTAT for fresh decision in conformity with the decision rendered by the Larger Bench - appeal allowed.
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2020 (11) TMI 842
Validity of delayed adjudication of SCN - Inordinate delay of 13 years in adjudication of SCN - whether in the facts and circumstances of the case, such delayed adjudication of the show-cause notices would be just, proper and legal? - HELD THAT:- This Court held that a show-cause notice issued a decade back should not be allowed to be adjudicated upon by the revenue merely because there is no period of limitation prescribed in the statute to complete such proceedings. Larger public interest requires that revenue should adjudicate the show-cause notice expeditiously and within a reasonable period. What would be the reasonable period would depend upon the facts and circumstances of each case but certainly a period of 13 years cannot be termed as a reasonable period. Secondly, regarding keeping the show-cause notice in the dormant list or the call book, this Court held that such a plea cannot be allowed or condoned by the writ court to justify inordinate delay at the hands of the revenue. To accept such a contention would defeat the rule of law itself. Taking cognizance of such an aspect would amount to giving credence to extraneous matters. In any case such a procedure internally adopted by the respondents is not binding on the Court.
In the present case, it is evident that the delay in adjudication of the show-cause notices could not be attributed to the petitioner. The delay occurred at the hands of the respondents. For the reasons mentioned, respondents have kept the show-cause notices in the call book but without informing the petitioner. Upon thorough consideration of the matter, we are of the view that such delayed adjudication after more than a decade, defeats the very purpose of issuing show-cause notice. When a show-cause notice is issued to a party, it is expected that the same would be taken to its logical consequence within a reasonable period so that a finality is reached. A period of 13 years as in the present case certainly cannot be construed to be a reasonable period.
Petitioner cannot be faulted for taking the view that respondents had decided not to proceed with the show-cause notices. An assessee or a dealer or a taxable person must know where it stands after issuance of show-cause notice and submission of reply. If for more than 10 years thereafter there is no response from the departmental authorities, it cannot be faulted for taking the view that its reply had been accepted and the authorities have given a quietus to the matter.
Also, respondents had not taken any action pursuant to the show-cause notices for long 13 years till issuance of notice for personal hearing on 13.08.2019. After the petitioner approached this Court by filing the present writ petition on 06.09.2019 with due intimation to the respondents, respondent No.3 went ahead and passed the order-inoriginal dated 11.11.2019. We fail to understand when the respondents could wait for 13 long years after issuance of the show-cause notices, there could not have been any earthly reason to proceed at such great speed and pass the order-in-original before the Court could adjudicate on the correctness of the action of the respondents.
There are no hesitation to hold that respondents were not justified in commencing adjudication proceeding 13 years after issuance of the show-cause notices dated 01.06.2006 and 28.11.2006. Such adjudication proceeding is therefore, held to be invalid - petition allowed - decided in favor of petitioner.
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2020 (11) TMI 840
Refund of amount paid as supervision charges - Interest for the amount paid as supervision charges - Board’s circular dated 23.04.2003 - HELD THAT:- It was observed by the board that even though the circular dated 01.01.2002 does not envisage any physical supervision of such storage premises /godown by the Central Excise, the field formations are still collecting merchant overtime charges / charges on cost recovery basis as per earlier concept of physical supervision of godowns / storage places in terms of Board’s Circular dated 14.04.1986. Therefore, the board’s circular dated 01.01.2002 and the earlier instructions of the State have stood modified to the said extent.
Thus, the over-time supervision charges could not have been charged by the respondents. Therefore, the appellant was entitled for refund of the over-time supervision charges. The board’s circular dated 24.04.2003 was required to be applied and the refund was to be granted to the appellant.
Interest for the amount paid as supervision charges - HELD THAT:- Since the supervision charges were not to be charged by law, the appellant would be entitled for payment of interest on refund of the said amount. However, the earlier payment of the supervision charges has been made by a mistaken notion of law - the department cannot be held completely responsible for collection of these amounts. Therefore, in order to balance equities, a notional interest is liable to be imposed - interest @ 3% per annum will be paid from the date of deposit made by the appellant till the date of payment to be made to the appellant by the respondents.
The substantial question of law is answered in favour of the appellant and against the department by holding that the appellant is entitled for refund of the amount paid by him towards supervision charges - Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 795
Rectification of Mistake - Refund of CENVAT Credit - Appellant Company has submitted that they have not received the refund order in question and the Revenue sought time but no proof has been provided by the Revenue with regard to service of communication of adjustment of refund amount and the same has been recorded by this Tribunal in the order itself - HELD THAT:- The appellant has claimed that the amount of ₹ 18,28,984/- has been debited on various dates and also intimated to the department through various letters with regard to adjustment of the amount of ₹ 18,28,984/-. The said fact has not been controverted by the Revenue during the course of argument. Moreover, it has been recorded by the Tribunal that no show cause notice has not been issued to the appellant for appropriation of the said amount paid by the appellant. Further, in final order dated 29.01.2020, this Tribunal has taken on record the letter dated 10.08.2007 which is a reply to the letter dated 12.06.2007 demanding interest on the amount of ₹ 36,57,968/- for delayed/reversal or debited of the amount. The said fact clearly indicate that the appellant has reversed/deducted or adjusted a sum of ₹ 36,57,968/- which is the subject matter of the refund claim in hand.
Further, it has been recorded by this Tribunal that no proof has been produced by the Revenue that the adjustment/rejection of amount in refund claim has been communicated to the appellant. In fact, the Revenue claimed that it is rejection of refund claim in question while entertaining the refund claim in 2005. The Refund claim in question was not the subject matter of the said refund claim which was entertained by the adjudicating authority while sanctioning the refund claim for the month of February, March and September, 2005.
There is no mistake apparent on record while passing the order by this Tribunal on 29.01.2020, the Revenue seeks to review of the order passed by this Tribunal which is not permissible in law - the application for rectification of mistake deserves no merit - Application dismissed.
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2020 (11) TMI 726
Interest on refund claim - Section 11BB of the Central Excise Act, 1944 - interest denied on the finding that the adjudication of the claim attained finality only after dismissal of the proceedings before the High Court on 18-7-2005; whereas the Department had already paid refund amount to the appellant on 26-6-2005 - Circular No. 670/61/2002-CX.8, dated 1-10-2002 - HELD THAT:- The approval of the dictum of the Rajasthan High Court in JK. CEMENT WORKS VERSUS ASSTT. COMMISSIONER OF CENTRAL EXCISE & CUSTOMS [2004 (2) TMI 78 - RAJASTHAN HIGH COURT], which directly deals with the claim of the appellant before this Court who had made application for refund on 30-12-1999 and, therefore, the statutory interest ought to commence after non-payment within three months from the date of application, being the starting point envisaged by Section 11BB of the Act.
The claim of the appellant regarding statutory interest under Section 11BB of the Act is allowed - appeal allowed - decided in favor of appellant.
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2020 (11) TMI 725
CENVAT Credit - LAM ( Low Ash Metallurgical) COKE - fake invoices without supply of goods - time limitation - main basis of denying the Cenvat credit to the appellants are the two letters received by the department, one from the Municipal Commissioner and the other from the Postal authorities - HELD THAT:- The best evidence would have been for departmental officers to physically visit the place and draw a panchnama after making enquiries from the locality. No such documentary evidence is there on record - The department has not denied that the dealer, M/s Dankuni Steel Ltd was registered with the jurisdictional Central Excise formation. As per extant departmental instructions the premises were required to be physically inspected within 5 days of granting registration. It has to be presumed that these instructions were duly followed. In that case it has to be assumed that during the relevant period the dealer was operating from the registered premises.
The dealer has clarified that their head office was at Bentinck Street and this was duly indicated in all the disputed invoices. The department has not denied the existence of the dealer at the Bentinck Street address - Hence, the material available on record can at most arouse suspicion, but suspicion, however strong, cannot replace proof/evidence.
The department has made no enquiries to ascertain whether the disputed quantity of LAM Coke had been received in the appellants’ factory or not. A proper stock-taking would have revealed the true picture. But no such evidence is there. Hence, it has to be accepted that the disputed quantity of LAM Coke was actually received in the factory - The department did not also make any enquiry to determine whether the quantity of finished goods manufactured by the appellants was consistent with the consumption of the disputed quantity of inputs.
The appellants had provided the Railway Receipts (RR’s) under cover of which the inputs had come. The disputed invoices have crossreferences of the corresponding RR’s. The department made no efforts to verify the genuineness of the RR’s - Hence, it cannot be said that the invoices received in the appellants’ factory were not accompanied by duty paid goods.
It is also established law now that duty paid goods can be consigned directly to a buyer by the manufacturer/supplier without the goods first going to the dealer’s premises - Once it is held that the disputed quantity of goods have been duly received in the appellants factory, the cenvat credit on input service of transportation cannot also be denied.
The department has not been able to make out a case for denial of Cenvat Credit - Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 724
Duplication of appeal filed - against one impugned order two appeals were filed - HELD THAT:- Only one appeal needs to be filed against impugned order therefore, the second appeal No. E/12975/2019 and Cross Objection No. E/CO/10114/2020 are dismissed as infructuous.
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2020 (11) TMI 723
Refund claim - rejection of refund claim as being time-barred by computing the period upto the date of second presentation before the Tiruchirapalli Commissionerate - HELD THAT:- The refund claim has been first presented on 31-3-2010, the refund sanctioning authority has erred in computing the time-limit reckoning 16-8-2011 as the date of filing refund claim. The time-limit has to be computed from the date of clearance of the goods to the date of first presentation of the claim. The refund would be then well within time. The rejection of refund claim on the ground of being time-barred is set aside.
The refund sanctioning authority is directed to look into the merits of the claim. The matter is remanded back to the refund sanctioning authority, who is directed to consider the claim on merits - Appeal allowed by way of remand.
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2020 (11) TMI 665
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Misdeclaration in SVLDRS-1 Form - rejection of benefit under the scheme on the ground that the amount of penalty had not been stated in the SVLDRS-1 form which makes it an incorrect declaration - HELD THAT:- The issue as to whether an inadvertent mistake as regards the penalty imposed being not correctly stated in the SVLDRS-1 form, it has been decided by this Court in its judgment [2020 (6) TMI 38 - GAUHATI HIGH COURT] where it was held that
This writ petition also stands disposed of by requiring the petitioner to submit an application before the respondent authorities for correction to be made in the information provided in the Form SVLDRS-1 as regards the penalty imposed and upon such application being made, the respondent authorities would pass a reasoned speaking order thereon - Petition disposed off.
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2020 (11) TMI 664
Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- The matters are covered by the Litigation Policy of the Government being F.No.390/Misc./116/2017-JC dated 22.08.2019. Since the quantum of dispute in the present appeals is well within the amount as notified in the Litigation Policy before the Tribunal, it is deemed appropriate to dispose of the appeals in terms of litigation policy vide Board’s instruction being F.No.390/Misc./116/2017-JC dated 22.08.2019.
The appeals are disposed off under the National Litigation Policy.
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2020 (11) TMI 663
CENVAT credit - electricity - captive consumption - common Cenvat availed inputs and input services in the generation of electricity without maintenance of separate records - Rule 6(3)(i) of the CCR - extended period of limitation - interest - penalty - HELD THAT:- The self-same issue had fallen for consideration of the Hon’ble Allahabad High Court in the GULARIA CHINI MILLS AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2013 (7) TMI 159 - ALLAHABAD HIGH COURT] wherein the Hon’ble Court observed that electrical energy generated from Bagasse is not covered under Chapter 27 of the CETA and is therefore, non-excisable thereby not attracting the provisions of Rule 6 at all as observed from para 22, 26 & 32 thereof. The said decision has also been upheld by the Hon’ble Supreme Court in the UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT].
Even after the insertion of the Explanation 1 Rule 6 of the CCR with effect from 1 March 2015 equating non-excisable goods with exempted goods for the purpose of Rule 6 of the CCR, the factual position remains that no Cenvat availed inputs were used by the Appellant in the generation of electricity from Bagasse. Bagasse remains non-excisable and the question of availing any credit thereon does not arise. That the Appellant had maintained separate records and refrained from availing any credit on the other indirect inputs is also evidenced from the CA Certificate dated 22 February 2017 which has been sought to be refuted by the Adjudicating Authority on the ground that the same is limited to non-availment of credit on few inputs only. However, the adjudicating authority has not referred to any other inputs over and above, those mentioned in the CA Certificate. Therefore, the Certificate of the expert could not have been discarded without any specific and cogent evidence concerning the disputed period.
Time Limitation - HELD THAT:- The Adjudicating Authority himself has accepted that a Notice for the prior period was issued on the self-same issue for the period 2013-14 and the demand covering of 6% under Rule 6(3) was dropped by the Adjudicating Authority therein. Under these circumstances, the subsequent Notice could not have been issued invoking the extended period of limitation.
Appeal is allowed on merits as well as limitation
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2020 (11) TMI 656
Grant of Anticipatory Bail - excise duty evasion case of ₹ 150 crores - It is submitted that investigation in the present case has already been concluded and the amount deposited by the applicant/accused is sought to be adjusted towards the final adjudicated amount - HELD THAT:- The applicant/accused is alleged to be involved in a duty evasion case of ₹ 150 crores. Even during the course of investigation, it is informed that he was not forthcoming on certain vital issues of investigation and he is giving evasive replies to the query of the investigating agency - Ld. SPP has informed the court that applicant accused is involved in the commission of an offence u/s 9 (b), (bb), (bbb) and (bbbb) of the Central Excise Act, 1944. It is further informed by Ld. counsel for department that applicant/accused is playing hide and seek and intends to take undue benefit of the fact that after five years of the commencement of investigation i.e. September 2020, as investigation commenced in September, 2015, the department would not be in a position to take the investigation to a logical conclusion
Considering the nature of allegations involved in the present case,this is not a fit case to grant anticipatory bail to the applicant/accused, hence, his bail application stands rejected.
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2020 (11) TMI 623
Maintainability of appeal - non-compliance with the requirement of pre-deposit - section 35F of the Central Excise Act, 1944 - HELD THAT:- The learned Commissioner(Appeals) has not decided the case on merits, but has dismissed the appeal on the ground of non-compliance with the provisions of section 35F of the Central Excise Act, 1944. After filing appeal before the Tribunal, the appellant has deposited an amount of ₹ 10,00,000/-, which is sufficient to hear their appeal on merits.
The appeal filed by the appellant is allowed by way of remand to learned Commissioner(Appeals) for deciding the case on merits, without insisting on any further pre-deposit - Appeal allowed by way of remand.
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2020 (11) TMI 579
Application for early hearing of the appeal - application has been filed on the ground that the amount involved in the matter is quite substantial and also recurring in nature - HELD THAT:- Since we do not find any NOC available on the file from the earlier counsel, i.e. Shri Lakshmikumaran & Sridharan, filed uptil now, we are not in position to hold that this early hearing application has been properly constituted and hence should not be maintainable.
The Registry is directed to consider listing the appeal after three weeks on or about 26.11.2020 for final hearing if all the NOCs and other documents are completed before that date - Matter to be listed on 26.11.2020 for completion of records and hearing.
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2020 (11) TMI 556
Area Based Exemption - Northeastern/Backward region - substantial expansion or not - doctrine of promissory estoppel - benefit of N/N. 39/2001-CE dated 31-07-2001 - Irregular availment of CENVAT Credit - Bogus Sale - it is argued that in respect of North-eastern area, there is not even a single case of detection of fraudulent availment of benefit.
HELD THAT:- The petition is dismissed as having become infructuous.
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2020 (11) TMI 549
Clandestine Removal - 13683.05 MT of MS Billets - cogent, positive and concrete evidence to prove the said allegation, present or not - unaccounted purchase of various raw materials - reliability of third party documents - HELD THAT:- It is found from the show cause notice, that the allegation itself was that ‘in the specific question set out before him as to how he would disprove the facts of such clandestine clearance of their finished goods side by side their authorised clearance, whereas both of which have candidly confessed by M/s SPRML. Shri Mahapatra miserably failed to disprove the same whereby it led to the natural conclusion of conscious and organized modus operandi to evade legitimate Govt revenue in the guise of transaction that they have pretended to project themselves in clearing only authorised clearance of goods with M/s SPRML.
It can be made out that the Notice means to say that Shri Mahapatra could not disprove the allegation; it was accepted by Shri Debasis Samal and Shri Anil Jain of M/s SPRML and that in spite of the same Shri Mohapatra maintained that they have not cleared any goods other than those shown in authorised clearances. We find that the above is only an allegation and the department has not adduced any evidence whatsoever to establish the case of clandestine removal against the appellants. It was incumbent upon the department, who are alleging, to prove the same with evidence. The reliability of such an evidence becomes weak as the same comes from a third party. It has been alleged that the appellants have clandestinely removed 13,683.05 MT of MS Billets without payment of duty.
The allegation is only based on the data set to have been recovered from the secret office of M/s SPRML and no other evidence has been put forth. We find that as averred by the learned Counsel for the appellants, reliance cannot be placed only on the evidence available with the Third Party.
The appellants have alleged that while obtaining the electronic record at M/s SPRML, department did not adhere to the provisions of 36(B) of the Central Excise Act, 1944 and a certificate as required under Section 36B(4) is not issued. It is found that neither the SCN nor the adjudication order have dealt with the facts relating to this issue and from the records of the case, it cannot be made out whether the same were followed. The learned commissioner did not controvert the allegations in the adjudication order. Therefore, the reliance on the records thus seized from M/s SPRML alone, do not help the case of department, unless the same are corroborated by other evidence.
We agree to the proposition of the learned Commissioner that the department is not required to prove clandestine removal by mathematical precision. However, the instant case, we find that not even single evidence has been brought on record to show clandestine removal, conclusively establishing at least in a sample transaction. We find that the Annexure-H contains alleged receipts by M/s SPRML date wise from the appellants - Having conducted no investigation whatsoever, department cannot confirm the demand only on the basis of documents seized from some other person, more so the contents of which were never accepted by the appellants and cross examination was not allowed. If allegations can be made just on evidence obtained from third parties, there would be no dearth of such cases. We find that leaving alone proof with a mathematical precision, in the instant case, evidence made available is not even enough even for a Gross approximation. The appellant has relied upon a number of cases wherein it was settled that in order to prove the allegations of clandestine removal the department must bring on record cogent, positive and concrete evidence to prove the said allegation, the said allegation cannot be sustained on the basis of assumptions and conjectures.
Though, there is no bar in issuing SCNs for the same period covering different aspects backed by different set of evidence, it is not understood as to why the Department chose to issue different SCNs to the appellant on the allegation of clandestine removal when the genesis of both the cases was in the investigation conducted by DGCEI against M/s SPRML. However, as we found that the present SCN is not sustainable on merits, we are not going into the above issue. The appellants have also raised an issue that while the appellants have been issued a SCN alleging clandestine removal to M/s SPRML on the basis of documents alleged to have been recovered from M/s SPRML, M/s SPRML have not been made party to the impugned SCN and thereby, the case suffers from the principle of non-joinder.
Appeal allowed.
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2020 (11) TMI 548
SSI Exemption - clandestine removal - manufacture of MCBs (Miniature Circuit Breaker) - use of Brand name of others - demand of duty by the Department is primarily worked out on the basis of a rough register (RUD-26), which was recovered from the factory, alleged to be showing movement of the goods i.e. removal of finished goods and receipt of raw/packing materials - retraction of statements - SCN issued about 20 days before the end of 5 years from the date of search - HELD THAT:- It is evident on the face of the record that the show cause notice was issued by way of wide guess work wherein duty demand of ₹ 1.22 crores was made approximately. Further, the Revenue in the proceeding before the Settlement Commissioner itself revised the demand at ₹ 49,50,711/-, thereafter in the adjudication proceedings, the demand was further reduced and confirmed at ₹ 34,94,797/- which was also found erroneous and further reduced by the Commissioner (Appeals) at ₹ 34,06,203/-. It is also noted that the installed capacity (30,000 switches per month) as certified by the Chartered Engineer has not been found to be untrue or wrong, and the same was not considered without assigning any reason by the court below. It is also evident from the overall state of affairs that the appellant have not maintained proper records of the transactions. Further it is found that the Rough register (RUD-26) on the basis of which the quantum of clandestine removal has been estimated, is not reliable, as the author of the same Shri Sanjay has not been examined by the Revenue, neither the proprietor - Shri Ashish Gaur have been interrogated about the entry and interpretation in the said rough register. From the statement dated 15.12.2010 of Shri A. Gaur under Section 14 of the Act, it is found that there is no categorical admission of clandestine removal. Further this statement was retracted within a week.
Further, Revenue have not worked out the source of raw material for manufacture of the huge quantity alleged to be clandestinely cleared, nor flow back of the proceeds of the alleged clandestine removal. Further, no adverse quantitative ratio has been found out nor any adverse ratio with respect to consumption of electricity is found. Admittedly, the total electricity bill for the two months in dispute is about ₹ 20,100/- or ₹ 10,000/- per month approximately. With such meager consumption of power and taking in view the installed capacity, as well as the idle time due to power failure or break down of machine from time to time, the estimated production and confirming of duty by Revenue is found to be erroneous and high pitched.
In the interest of justice, the demand of duty is restricted to ₹ 2,51,596/-, which is the duty accepted or admitted by the appellant in their pleadings. This amount will further be adjustable from the duty liability disclosed in the Returns for the relevant period. Accordingly, penalty under Section 11AC read with Rule 25 of Central Excise Rules is set aside as case of Revenue is not proved.
Appeal allowed in part.
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