TMI Blog2018 (8) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal are, thus, wholly incorrect, against the record and unsustainable. Matter remanded back to the Tribunal to decide afresh - appeal allowed by way of remand. - Central Excise Appeal No. 38, 37, 39, 40 of 2016 - - - Dated:- 1-8-2018 - Hon'ble Bharati Sapru And Hon'ble Dinesh Kumar Singh, JJ. For the Appellant : S.S.C.,Parv Agarwal,Parv Agrawal,S.S.C. For the Respondent : Nishant Mishra ORDER ( Per Hon'ble Dinesh Kumar Singh, J. ) 1. The Respondent M/s Lamicoat International Pvt. Ltd. (hereinafter referred to as 'M/s LIPL) at the relevant time was engaged in production of following goods:- (a) Printed Laminated Plastic Film (b)Printed Laminated Plastic Film in pouch form (c) Metallized Polyester Film and (d) Flexible Polyethylene Film. 2. The controversy involved in these appeals is identical. Therefore, these appeals are being decided by a common judgment treating the Central Excise Appeal No.38 of 2016, as the leading case. 3. Acting on specific information that M/s LIPL was engaged in the evasion of Central excise duty by way of clandestine removal of excisable goods, the premises of M/s LIPL were searched on 13/14.08.2004 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat Credit Rules, 2002/2004 and under Rule 25 of the Central Excise Rules, 2002 read with Section 11 AC of the Central Excise Act, 1944 is imposable upon M/S LIPL for contravention of various provisions of Central Excise Act/Rules and (vii) Whether penalty under Rule 13/15 of Cenvat Credit Rules 2004 and Rule 26 of the Central Excise Rules 2002 is imposable on Shri Lok Nath Prasad, the Director of M/s LIPL, Shri Om Prakash Gupta, the Director of M/s LIPL and Shri Dipankar Ghosh, Manager and Authorised signatory of M/s LIPL, separately. 4. The Commissioner (Customs and Excise), Noida after analyzing the manufacturing process of the items being produced by M/s LIPL recorded a finding that metallization/ lamination did not change the primary nature of raw material being subjected to this process. Nature of input as well as end product remained as polyester film. The process of metallization/ lamination undertaken by M/s LIPL did not fall under the purview of Section 2(f) of the Central Excise Act, 1944 (hereinafter referred to as 'the Act'). The Commissioner (Customs and Excise) had placed reliance on the judgment of Supreme Court in the case of Metlex India Private L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, New Delhi Principal Bench, Delhi (hereinafter referred to as 'Tribunal'). Vide impugned judgment and order, the Tribunal has held that the M/s LIPL has made payment of Central Excise Duty which they had recovered from the customers. The Tribunal has not recorded any finding with respect to availing Cenvat credit by them against the Cenvat Credit Rules. However, the Tribunal has held that when the M/s LIPL has paid to the Central Government the amount collected from the customers as duty, therefore, the demand under Section 11-D of the Act is not sustainable. 8. Heard learned counsel for the Revenue and learned counsel for the respondent and perused the adjudication order dated 07.11.2008 as well as the impugned order of the Tribunal passed by the Commissioner (Customs and Excise), Noida. 9. The finding of the Tribunal that the Commissioner (Customs and Excise) has recorded a finding that M/S LIPL has made payment of Central Excise Duty which they had recovered from the customers is incorrect and run contrary to the record and order passed by the commissioner. The Commissioner (Customs and Excise), Noida on this issue had specifically held as under:- 16.5 It h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defence denied the contention of the department and argued that vide Notification No.22/2008-CE dated 02.05.2008 the Cenvat credit availed up to 12.02.2004 has been regularized. M/s LIPL has further cited various judgments in which it is held that once the duty has been collected by the department it is not open to department to contend that Cenvat credit is not admissible as the process does not amount to manufacture. Here, the issue involved pertains to the period of Dec.2000 to 17.04.2006 and the SCN has alleged recovery of amount collected as duty under Section 11-D after pointing out that Cenvat credit availed by them against polyester/polyethylene film was not available to them for making payment towards deposit of said amount as ''duty' against clearances of metallised/laminated plastic films. 65.18 M/s LIPL in their defence further argued that there is a contradiction in the notice as follows. On one had it has been contended that in terms of case of Metlex Indian Pvt Ltd the process under taken by them does not amount to manufacture resulting in no duty liability on them and at the same time it is contended that M/s LIPL are liable to pay the amount collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -CX dated 16.05.2008 cited by M/s LIPL in their written defence reply is not applicable. 65.19 M/s LIPL in their defence further argued that the demand under Section 11D of the Act made vide SCN dated 30.11.2007 pertains to the period Dec 2000 to Oct 2007 and March 2003 to June 2006 and so it is time barred on the ground that it is also subjected to the time limit prescribed under Section 11A. They also cited case laws in this regard. I observe in this case the demand has been made on the basis of decision of Hon'ble Supreme Court in the case of M/s Metlex India Pvt Ltd and process of manufacture undertaken by them. As it was revealed that process of lamination/metallization does not amount to manufacture, the amount collected by them as duty (from their customers as central excise duty) was accordingly demanded. Here, it is to point out that in the Section 11-D, there is no provision of any time limit. 65.20 In view of above said discussion, I am of the view that the amount of ₹ 8,45,11,283.00 charged and collected by M/s LIPL as ''Central excise duty' from their buyers on the clearances of metallised polyester film and Laminated films (PLP in rolls ..... X X X X Extracts X X X X X X X X Extracts X X X X
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