9911796707
TMI Blog2016 (5) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... are dutiable goods @ 16% while Rubber-sheets have nil rate of duty. The dispute relates to grant of benefit of Small Scale Industry exemption notification dated 1 March 2003. The relevant portion of the said exemption notification is as follows: " Para 2: The exemption contained in this notification shall apply subject to the following conditions, namely (i) ............. (ii) ............... (vii) the aggregate value of clearance of all excisable goods for home consumption by manufacturer from one or more factories or from a factory by one or more manufactures, does not exceed Rupees three hundred lakhs in the preceding financial year. Para 3 : For the purpose of determining the first clearance up to an aggregate value not exceeding one hundred lakh rupees made on or after the 1st day of April in any financial year, mentioned against serial No.1 of the said Table, the following clearance shall not be taken into account, namely :- (a) clearance, which are exempt from the whole of the excise duty leviable thereon (other than an exemption based on quantity or value or clearance under any other notification or on which no excise duty is payable for any other reason); ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 11AC of the Central Excise Act, 1944 for their deliberate suppression of facts with intention to evade central excise duty as discussed supra and contravention of the provisions of Rules, 4, 5, 6, 9, 10, 11 and 12 of the of the Central Excise Rules read with Notification No.08/2003 dated 1 March 2003; (c) Interest should not be demanded from them under section 11-AB of the Central Excise Act, 1944. The Assistant Commissioner, Central Excise by order dated 26 October 2005 ordered for confiscation of the seized goods since the rubber-sheets manufactured by the respondent were excisable goods though subject to nil rate of duty. It was held that for clearance value of all excisable goods, the value of clearance of rubber-sheets had to be taken into account in terms of the notification dated 1 March 2003 for the financial years 2003-04 and 2004-05. The respondent filed an appeal before the Commissioner (Appeals), Central Excise, Kanpur. The appeal was dismissed by the Commissioner (Appeals). The respondent preferred an appeal before the Tribunal which allowed the appeal by order dated 15 February 2013 on the point of limitation and the relevant portion of the order is as follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been filed by the Commissioner of Central Excise, Kanpur on the following question of law:- "Whether the order passed by Customs, Central Excise & Service Tax Tribunal, New Delhi which is based on manipulated records introduced in connivance with the officers of the Department, and considered by adjudicating authority without verifying their genuineness, can be amended/ modified by Hon'ble High Court?" We do not find that the question of law has been correctly framed. In any case the question has been raised on the basis of the facts stated in the memo of appeal namely that the declaration were not filed for the year 2002-03 and 2003-04 and were not available on the records of the department. The stand taken in the proceedings that declarations were submitted are based upon the photocopies of which the entries in the receipt register showing receipt of the declarations were found time barred and fraudulently inserted. The department got examined these entries in the receipt register of the year 2003-04 through M/s GP Saxena & Sons Forensic Consultants, Lucknow, who have confirmed in their preliminary opinion report dated 29.8.2013 that the disputed receipt entry has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to establish a nexus between interpolations and the participation by the assessee. As regards the miscellaneous application filed for recall of the order, the Tribunal recorded the sequence of events in paragraph 10 which are as follows: "10. What then are the sequence of relevant events, the grounds pleaded and the facts established by Revenue to seek rectification of the final order dated 15.2.2013? A summary : (i) Assessee pleaded before Commissioner, Central Excise, Lucknow (Adjudicating Authority) that for the financial years 2003-04 and 2004-05 they had declared the value of clearance on 14.4.2003 and 12.11.2004 respectively, separately indicating value of clearance of PVC soles and rubber sheets. On this basis, assessee claimed that since there was disclosure of relevant facts, there was no justification for invocation of the extended period (vide reply to the show cause notice). The adjudicating authority however confirmed the assessee's liability to duty, interest and penalty; (ii) In the CESTAT appeal filed on 13.11.2006, assessee clearly pleaded (in para 4 of the statement of facts) that declarations were filed on 14.4.2003 and 12.4.2004 (for 2003-04 & 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, the Tribunal concluded as follows: "15. Revenue does not plead nor establish before us that order dated 15.2.2013 is vitiated on account of any fraudulent document which was the basis for the conclusion as to illegality of invoking the extended period of limitation. Revenue's contention is that the declarations dated 14.4.2003 and 12.4.2004 (relevant to financial years 2003-04 and 2004-05) were never filed by assessee. This assertion is predicated on the fact that originals of these declarations are not currently available in Revenue records. Inference that the assessee did not file these declarations is based on the singular fact that there are overwritings/interpolations in the receipt register of 2003-04, as opined by the Forensic Consultant. On the basis of this opinion, Revenue seamlessly proceeds to conclude that the interpolations were the product of a collaborative effort of some unknown officers of the Department, at the behest of or in connivance with the assessee. There is no interconnecting evidentiary material furnished for this ethereal leap to the conclusion. Nothing is placed before us to establish whether any departmental officer was found guilty of inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
