TMI Blog2015 (10) TMI 2139X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to the recipient of the goods instead of the supplier of the goods. Learned AR further argued that since the appellant have paid the duty they have assumed the liability and therefore, they cannot escape the responsibility of paying interest and penalty. Reliance on the decision of the Hon ble High Court of Madras in the case of Alstom T&D India Ltd., (2015 (6) TMI 300 - MADRAS HIGH COURT) is misplaced in so far as in that case, the liability of the appellant themselves was no doubt. In this case the liability itself does not exist. In this case, since there was no liability to pay duty, the liability to pay interest and penalty cannot arise. - Decided in favour of assessee. - APPEAL No. E/1462/10 - - - Dated:- 18-8-2015 - Mr. Raju, Member (Technical) Shri.A.V.Naik, Advocate : For the Petitioner Shri. N N Prabhudesai, Supdt. (AR) : For the Respondent ORDER Per: Raju 1. M/s.VVF Ltd., the appellant have units in Kutch as well as in Sion, Mumbai. The appellant unit in Sion, Mumbai received certain material from Kutch unit under Notification No.214/86-CE dated 25/03/1986. Part of this material was not returned to the Kutch unit and consumed by the Sion un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no liability of paying duty on the unit at Sion and duty could have only be demanded from Kutch unit. He further argued that the adjudicating authority in his finding has observed as follows: In the case of Desh Rolling Mills Vs. CCE, Delhi (2000 (122) ELT 481 (Tribunal) it was held that Notification No.214/86-CE provides for exemption to the goods manufactured in a factory as a job work and used in or in relation to the manufacture of final products on which duty of excise is leviable whether in whole or in part subject to the condition that the supplier of the raw material give an undertaking to the jurisdictional departmental authorities that the goods shall be so used and also produces evidence that the goods have been actually so used. Accordingly, the matter was taken up with the supplier of the raw material by the Jurisdictional Central Excise authority viz. In charge Central Excise Authority of M/s.VVF Ltd. Gandhidham. M/s.VVF Gandhidham vide their letter dated 04/08/2009 stated to the jurisdictional range superintendent that the challan issued under notification No.214/86 dated 25/03/2006 along with copy of LR, jobwork register showing complete moveme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the act of a third person. 3.2 He asserted if a particular method is prescribed by law the same has to be followed. In this case the Notification No.214/86 clearly prescribed that liability is to be fixed on the sender of the goods. 3.3 Learned Advocate further argued that there was no determination of duty done and therefore, interest and penalty could not have been recovered. He argued that penalty and interest and could only be recovered after determination of duty under Section 11A and since in this case no demand has been confirmed, no determination of duty was done, interest and penalty could not have been recovered. 3.4 He further argued that the entire situation is in Revenue neutral as if the Kutch unit has paid duty, the same would have been admissible to the credit to the Sion unit. For this purpose he stated that the decision of the Honble High Court of Gujarat in the case of CCE, Vadodara Vs. Indeon ABS Ltd., - 2010 (254) ELT 628 (Guj) which reads as follows: The aforesaid findings of facts are not disputed. The grievance was that? the aspect of undervaluation has not been considered by the Tribunal at all. Grievance would have merited acceptance if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... introduction of Section 11AA by the Act with effect from 8-4-2011, interest on delayed payment of duty is payable where such payment is made voluntarily or after determination of duty under Section 11A of the Act and inasmuch the provision of Section 11AA of the Act did not read in the same manner as that of Section 11AB of the Act, as it stood during the relevant assessment years, in a case where the assessee had voluntarily made payment, the question of interest on delayed payment of duty does not arise. 8.2 Section 11AA of the Act, as amended by Section 64 of the Finance Act, 2011 (8 of 2011), does not in any way advance the case of the appellant, as we find that the liability to pay interest on delayed payment of duty is clearly envisaged in Section 11A(2B) read with Explanation 2 to the said provision. Such interest was leviable even during the period in question. In fact, the Supreme Court in SKF India Ltd. case, referred supra, observed that there is some ambiguity in the said provisions, which was a cause for amendment brought to Section 11AA of the Act. The relevant portion of the observation made by the Supreme Court is as under : If the object of the law is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l within the suppler of the goods and not on the recipient. Reliance placed by the learned AR on the decision of Honble Tribunal in the case of Xerox India Ltd. is misplaced, as in that case, the issue involved lack of clear cut demarcation of jurisdiction. In the instant case, the notification No.214/86 clearly determines the liability of the sender and that of the receiver of the goods. 7. In view of the above, I find that the show-cause notice itself issued wrongly to the recipient of the goods instead of the supplier of the goods. Learned AR further argued that since the appellant have paid the duty they have assumed the liability and therefore, they cannot escape the responsibility of paying interest and penalty. Reliance on the decision of the Honble High Court of Madras in the case of Alstom T D India Ltd., (supra) is misplaced in so far as in that case, the liability of the appellant themselves was no doubt. In this case the liability itself does not exist. In this case, since there was no liability to pay duty, the liability to pay interest and penalty cannot arise. 8. In view of the above, I allow the appeal filed by the appellant. (Pronounced in Court) - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
