TMI Blog2019 (1) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... i finished goods give an undertaking to Commissioner or Central Excise Office having jurisdiction over the factory of the job worker - The allegations against the appellant have been confirmed only for want of such undertaking - Held that:- Central Board of Excise & Customs clearly says that merely procedural lapses be not allowed to defeat the modvat credit benefit, if substantive conditions about payment of duty and user of goods in manufacture of end product in factory are fulfilled - In view of the admitted facts, there is sufficient compliance by the appellant qua the substantial liability as laid in the Notification relied upon is concerned. Mere lack of sending an intimation is a procedure which is mere directry. Denying the substantial benefit to the appellant on merely a procedural lapse is unjustified on the part of the adjudicating authority below. Time Limitation - Held that:- It is the onus of the Department to prove that assessee had deliberately avoided payment of duty which is payable in accordance of law - the appellant was not liable to make the payment of duty in view of the exemption vide Notification No. 67/95 qua the capital goods consumed in captive use af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant has paid the differential cost of fresh CI moulds by taking into account the cost of waste and scrap is also alleged to be wrong and to be based purely on presumption and assumption. Kirloskar Oil Engines Ltd. Vs. CCE, Nashik 2017 (349) E.L.T. 299 (Tri. Mum.) is relied upon. It is submitted that no duty is payable on waste and scrap as it has been used within factory for production of CI moulds i.e. the final product, put to captive use as capital goods. IPCL Ltd. Vs. CCE, Vadodara 2004 (178) E.L.T. 656 (Tri. Mum.) is relied upon. Above all the issue involved is revenue neutral and the Notification No. 67/95 dated 16.03.1995 has been issued with a view of dealing with the revenue neutral situation. The authority below has failed to consider the same. Hindustan Copper Ltd. Vs. CCE, Raipur 2006 (206) E.L.T. 276 (Tri. Del.) is relied upon. Finally it is submitted that the issued being technical and revenue neutral, the malafide intend cannot be alleged on the part of the appellant. As such, the extended period of limitation is not available to the Department that too for denying the substantial benefit merely on account of procedural valuation. Adani Gas Pvt. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that nothing contained in this notification shall apply to inputs used in or in relation to the manufacture of final products (other than those cleared either to a unit in a Free Trade Zone or to a 100% Export Oriented Undertaking or to a unit in an Electronic Hardware Technology Part or to a unit in a Software Technology park), which are exempt from the whole of duty of excise leviable thereon or are chargeable to Nil rate of duty. Explanation. - For the purpose of this notification inputs does not include :- (i) packaging materials in respect of which any exemption to the extent of the duty of excise payable on the value of packaging materials is being availed of for packaging any final products; (ii) packaging materials or containers, the cost of which is not included in the assessable value of the final products under Section 4 of the Central Excises and Salt Act, 1944 (1 of 1944). 6. It is clear from the above Notification that the capital goods produced in the factory of consumption are exempted. The view that captively consumed capital goods cannot be treated in the excluded category of final product mentioned in the above said proviso w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Rampur AIR 1965 Supreme Court 895 has held that the question whether a particular provision is mandatory cannot be resolved by laying down any general rule and it would depend upon the facts of each case. For that purpose, the objective of the statute in making out the provision is the determining factor. Central Board of Excise Customs clearly says that merely procedural lapses be not allowed to defeat the modvat credit benefit, if substantive conditions about payment of duty and user of goods in manufacture of end product in factory are fulfilled. It was held that however substantial benefit should not be denied for the procedural valuation if the substantial liability has been complied with. In view of the admitted facts as mentioned above there is sufficient compliance by the appellant qua the substantial liability as laid in the Notification relied upon is concerned. Mere lack of sending an intimation is a procedure which is mere directry. Denying the substantial benefit to the appellant on merely a procedural lapse is unjustified on the part of the adjudicating authority below. 9. Finally coming to the issue of limitation it is held that since the entire exercise of c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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