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2016 (9) TMI 418 - CESTAT NEW DELHI

2016 (9) TMI 418 - CESTAT NEW DELHI - 2017 (347) E.L.T. 141 (Tri. - Del.) - Whether re-packing of the goods after marking the supply order No., No. of objects inside the packet and other necessary details for due identification at the consignee’s end would be tantamount to manufacture as per the definition of manufacture given in Section 2(f)(iii) of Central Excise Act, 1944 - Held that:- as per definition packing or re-packing or Labeling or re-labeling container including declaration or altera .....

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under the definition of manufacture because without such markings the product could not have been sold to the Customer which in this case is the Defence Department of Government of India because the agreements between the Ordinance Factory and the respondent, required the respondent to do so. - Whether the respondent is entitled to the benefit of Notification No.64/95-CE even though, it had not followed the procedure prescribed under Central Excise (Removal of Goods at Concessional Rate of .....

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Duty for Manufacture of Excisable Goods) Rules, 2001 was just a procedural requirement and therefore, the substantive benefit would not be deniable on account of non-following of the same. - Invokation of extended period of limitation - clandestine manufacturing of excisable goods - intentional terming of goods as “Trading goods” just to mislead the department - evasion of central excise duty and education cess - willful clearance of same without the cover of Central Excie invoice/Challan a .....

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ew that the process undertaken by it amounted to manufacture, it was easy for it to follow the Chapter 10 Procedure and claim the benefit of Notification No. 64/95 - CE. - In this regard, it is also pertinent to mention that observance of “chapter 10” Procedure for claiming the exemption Notification benefit is a mandatory requirement has been settled by the Five Member Bench of the Hon’ble Supreme Court in the case of Commissioner vs. Harichand Shri Gopal [2010 (11) TMI 13 - SUPREME COURT .....

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exist in this case to sustain the allegation of willful misstatement or the suppression of facts, and therefore, the extended period cannot be invoked. The show cause notice in this case was issued on 07.05.08 and a period of demand involved is 2006-07 and therefore, the one year period (normal period) expired by the end of April 2008 while the show cause notice was issued in May, 2008. Therefore, the entire demand is beyond the normal period of one year and hit by time bar. - Decided against t .....

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marking the supply order No., No. of objects inside the packet and other necessary details for due identification at the consignee s end would be tantamount to manufacture as per the definition of manufacture given in Section 2 (f) (iii) of Central Excise Act, 1944. (2) Whether the respondent is entitled to the benefit of Notification No.64/95-CE even though, it had not followed the procedure prescribed under Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisa .....

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price on it or adoption of any other treatment on the goods to tender the product marketable to the consumer. And the word manufacturer shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account. As is evident from the perusal of the above definition packing or re-packing or Labeling or re-labeling container including declarat .....

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rely covered under the definition of manufacture because without such markings the product could not have been sold to the Customer which in this case is the Defence Department of Government of India because the agreements between the Ordinance Factory and the respondent, (one of which is dated 30th December, 2006) required the respondent to do so (as per para 26 thereof). As regards the contention of the respondent that had it been aware that this process would amount to manufacture, it would h .....

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. Advocate for the respondent, however, fairly conceded that this issue stands settled by the Hon ble Supreme Court judgment in the case of Commissioner vs. Harichander Shri Gopal - 2010 (260) ELT 3(S.C.), in terms of which, it has been held that following the said Procedure is a mandatory requirement for availing exemption. Thus, the respondent was not eligible for the said exemption Notification. Thus, on merit the duty was payable on the impugned goods. 4. However, it is seen that the extende .....

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tral Excie invoice/Challan and without payment of Central Excise duty and without following the procedure as laid down under Central Excise Law for the clearance of the excisable goods and thus they appears to have evaded Central Excise duty collectively amounting to ₹ 29,24,686/- and Education Cess of ₹ 58,494/- on the clearance value of ₹ 1,82,79.285/- of excisable goods in excess of Rs.One Crore exemption limit, during the financial year 2006-07 and thus appears to have cont .....

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partment, for the manufacture of excisable goods, manufactured and cleared by them; v. Rule 10 - inasmuch as they failed to record the actual production of the finished goods in their daily stock register; vi. Rule 11 - in as much as they did not remove the goods under the cover of an invoice prescribed under the Rule ibid; and vii. Rule 12 - in as much as they failed to reflect their true production and clearance in their monthly returns. While the Revenue has filed the appeal merely on the gro .....

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tatement or suppression of facts can be alleged, leave alone sustained. The facts are that the goods were supplied to the Ordnance Factory, which is a part of Government of India and all the payment received by Cheque. Further, there is force in the contention of the respondent that had it been of the view that the process undertaken by it amounted to manufacture, it was easy for it (i.e. the respondent) to follow the Chapter 10 Procedure and claim the benefit of Notification No.64/95 - CE. In t .....

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imately claimed the exemption benefit even without following the said Procedure. Thus, there is force in the respondent s contention that there was no reason for it to indulge in wilfull misstatement or suppression of facts. In the case of Uniworth Textiles Ltd. vs. CCE, Raipur [2013 (288) ELT 161 (SC)], it was held that mere non-payment of duties is not equivalant to collusion or willful misstatement or suppression of facts, otherwise there would be no situation of which ordinary limitation per .....

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