TMI Blog2023 (5) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... not even the primary requirement of intimation to the jurisdictional authority is met with - The Hon ble Apex Court in the case of EAGLE FLASK INDUSTRIES LIMITED VERSUS COMMISSIONER OF C. EX., PUNE [ 2004 (9) TMI 102 - SUPREME COURT] , has categorically held that fulfillment of a notification conditions, set out for availment of exemption benefits are not empty formalities and merely procedural with no consequence attached for non-observance. Thus attendant conditions filing of declaration/undertaking/intimation are in the nature of action where failure to do so could lead to attendant consequences. The obvious consequence being the denial of the benefit in the present case. In the present case, the appellant was legally obliged to tender the requisite intimation in order to claim the exemption. Further, this failure is not once but with each time the goods were returned and under consideration in the present appeal. The benefit of exemption Notification No.31/2011-CE dated 24.03.2011 therefore, in respect of 1456 pcs is not admissible to the appellants. The benefit of duty paid nature of goods and the consideration of the said stock of 1456 Pcs. of branded good as out of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for violation of the provisions of Central Excise Act and Rules, demanding Central Excise duty of Rs. 35,038/- on 1456 pcs. of other branded garments cleared vide Invoice No. SSF/12-13/002,003 004 dated 20th April, 2012 and Rs. 1,19,434/- on 4963 pcs. of branded garments as reported in the monthly returns for June, 2012, but were found missing/unreported in the subsequent month of July, 2012. 2. The aforesaid omisssions and non-payment of appropriate duty were pointed out during audit verification under EA2000 for the period 2011-12 to 2012-13 and during scrutiny of ER-1 returns for the financial year 2012-13. The Revenue was of the view that the appellant had cleared the goods without payment of Central Excise duty aggregating Rs.1,54,472/- (comprising of basic Central Excise duty amounting Rs.1,49,973/- Education Cess of Rs.2,999/- S HE Cess of Rs.1,500/-). 3. In so far as 1456 pcs. of other branded garments are concerned, the appellants submitted that these branded goods were returned to them and were initially cleared under cover of duty paid invoices during the period 2011-12 2012-13, it is for these goods the benefit of exemption Notification No.31/2011-CE dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption notification conditions for the return goods. This intimation is required to be submitted within 48 hours of return of goods to the factory in terms of Clause (2) of the said Notification. The ld. Advocate was however quick to add, that however, they had all along maintained proper accounts of such goods as was also enshrined in the notification. Relevant extract of the Statement of Goods Sold, Goods Return and Resale for the Financial Year, 2011-12 and 2012-13 tendered by the ld. Advocate, is reproduced below : Details of Original Sale Sl. No Invoice No Invoice Date Qnty. Pcs. In MRP Total Value Incl. all taxes 1. SSF/11-12/018 01.06.11 1909 699 601002.34 2. SSF/11-12/020 03.06.11 1879 699 591557.57 Excise paid Resale Goods Detail S.No. Invoice N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of CCE, New Delhi Vs. Hari Chand Shri Gopal had categorically held that the purpose object of the notification was to exempt the goods referred therein and not to absolve the parties concerned from non-adherence to the prescriptions thereof I am of the view that the ratio, of law as propounded by the Hon ble Apex Court is strictly applicable to the present matter. The Hon ble High Court in the said matter had even gone to the extent of rejecting details maintained by the assessee in formats and elsewhere than as prescribed. It is thus felt that the appellant was legally obliged to tender the requisite intimation in order to claim the exemption. Further, this failure is not once but with each time the goods were returned and under consideration in the present appeal. The benefit of exemption Notification No.31/2011-CE dated 24.03.2011 therefore, in respect of 1456 pcs is not admissible to the appellants. The benefit of duty paid nature of goods and the consideration of the said stock of 1456 Pcs. of branded good as out of duty paid stocks, cannot therefore be considered in favour of the appellants. 6. In so far, the subject of 4963 pcs. of branded pants not found to be ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the charge of suppression cannot be made against them, as the demand has been worked out from their own records in the course of audit. In support of their contention, the appellants relied on the Tribunal s decisions in the case of BCH Electric Ltd. Vs. CCEx, Delhi IV [2013 (31) STR 68 (Tri.- Del.) and Tally Solutions Pvt. Ltd. Vs. Commissioner of Central Excise, Bangalore [2020 (41) GSTL 520 (Tri.-Bang.).]. 8.1. It is the appellant s case that while the issue arises out of scrutiny of records relating to manufacture and clearance of finished goods and ER-1 Returns for the year, 2011-12, 2012-2013 which were filed timely the show-cause notice was issued to them on 23rd July, 2015 hence time barred. Their limited point is that the demands flow out of records obtained from them during the course of audit, hence no mens rea or any of the ingredients required for invoking the extended period of limitation can be considered to have been met with and hence the present demand is time barred. 8.2. It may be pointed out that the benefit of the decisions referred to by the appellants cannot be extended in their support. In both the aforesaid cases the Tribunal was concerned with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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