TMI Blog2023 (6) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... ch are finished product and cleared to M/s. Mira Textiles and M/s. Mohan Breweries under the instructions of M/s. Mira Textiles. The department has relied upon a statement of Shri G. Hari Hara Subramanian, General Manager of appellant-company to allege that appellant is a job worker. The documentary evidence in the nature of invoices for purchase of raw materials, invoices for clearances of finished products indicate that the appellant is an independent manufacturer. Documentary evidence prevails over oral statement which is not put to the test of examination and cross-examination as required under Section 9D. There is no evidence to support the case of the department. It clearly shows that the appellant has purchased raw materials and used them for manufacture of carton boxes as an independent manufacturer. Similar issue was considered by the Tribunal in the case of COROMANDEL PAINTS LTD. VERSUS COMMISSIONER OF C. EX., VISAKHAPATNAM [ 2010 (9) TMI 315 - CESTAT, BANGALORE] where it was held that merely indicating the vendors of the raw materials or by giving advance money for procurement of such materials or installing the equipments giving by the SIPL would not render the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.37/2010 dated 06.05.2010 was issued proposing to determine the differential duty along with interest and also for imposing penalties. After due process of law, the adjudicating authority confirmed the demand along with interest and also imposed penalty. Against such order, the appellant filed an appeal before the Commissioner (Appeals) who upheld the same. Hence this appeal. 4. Ld. Counsel Ms. Radhika Chandrasekar appeared and argued for the appellant. It is submitted by the Ld. Counsel that the appellant procured the raw material viz. kraft paper from M/s. Mira Textiles on payment of Excise Duty as well as Sales Tax / VAT. The ownership of such raw material is then transferred from Mira Textiles to the appellant. The finished products (carton boxes) was manufactured by the appellant using this raw material. There was no free supply of raw material by M/s. Mira Textiles. Further, the finished goods was sold by the appellant to Mira Textiles by raising an invoice and charging applicable excise duty and Sales Tax / VAT. The goods are delivered to M/s. Mira Textiles and sometimes as per the instructions the goods are delivered to customers of Mira Textiles viz. Mohan Breweries et ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been issued invoking the extended period on 06.05.2010. It is alleged by the department that the appellant has suppressed facts with intent to evade payment of duty. Ld. Counsel submitted that there is no evidence to prove that the appellant has suppressed any facts with intent to evade payment of duty. Appellant has filed periodical returns showing clearances of the finished products. So also, the purchases of raw materials are on payment of excise duty which has also been accounted properly. The demand has been raised on the basis of documents which were produced before the department when called for; that there are no grounds for invoking extended period and the show cause notice is time-barred. 8. Ld. Counsel relied upon the decision of the Tribunal in the case of Coromandel Paints Ltd. Vs CCE Visakhapatnam -2010 (260) ELT 440 (Tri.-Bang.) and argued that in similar set of facts, the Tribunal has held that merely indicating that vendors of raw materials had paid some advance money for procuring raw material, it cannot be said that the asssessee is a job worker. The decision in the case of Sujhan Instruments Vs CCE Chennai 2019 (368) ELT 135 (Tri.-Chennai) was also relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al consideration, if any, flowing directly or indirectly from the buyer to the assessee in connection with the sale of such goods, and such price-cum-duty, excluding sales tax and other taxes, if any, actually paid, shall be deemed to include the duty payable on such goods. 12. Relevant portion of provisions of Rule 10A also is noticed as under : RULE 10A. Where the excisable goods are produced or manufactured by a job-worker, on behalf of a person (hereinafter referred to as principal manufacturer), then,- (i) in a case where the goods are sold by the principal manufacturer for delivery at the time of removal of goods from the factory of job worker, where the principal manufacturer and the buyer of the goods are not related and the price is the sole consideration for the sale, the value of the excisable goods shall be the transaction value of the said goods sold by the principal manufacturer; (ii) in a case where the goods are not sold by the principal manufacturer at the time of removal of goods from the factory of the job-worker, but are transferred to some other place from where the said goods are to be sold after their clearance from the factory of job worker and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation as required under Section 9D. There is no evidence to support the case of the department. It clearly shows that the appellant has purchased raw materials and used them for manufacture of carton boxes as an independent manufacturer. 14. Similar issue was considered by the Tribunal in the case of Coromandel Paints Ltd. Vs CCE Visakhapatnam -2010 (260) ELT 440 (Tri.-Bang.). Relevant paragraphs of the said decisions are reproduced as under : 8 . It can be noticed from the above reproduced clause that the appellant herein was willing to manufacture and supply paints to SIPL at a price i.e. mutually beneficial and reasonable. This would indicate that both the parties had an intention to enter into an agreement for purchase and sale of the paints, which are for specific application and are manufactured only on request of SIPL. All other clauses which have been referred to by the lower authorities are discussing about the commercial terms which have been brought into play in a normal agreement. It is also undisputed that the paint which was to be manufactured by the appellant is for specific applications i.e. for marin applications. If that be so, there is nothing wrong in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b worker which has been relied upon. We find that the definition or the explanation to Rule 10A of the Valuation Rules which indicates who is a job worker specifically indicates that the job worker would be a person who manufactures or produces goods on behalf of principal manufacturer from any inputs or goods supplied by the principal manufacturer or other persons authorized by him. In the case before us, it is on record and as per the agreement entered between both the parties, that the appellant will purchase and procure the raw materials, packing materials and manufacture the paints as per the specification of the SIPL. The question of receiving advance money for payment towards the purchases of raw materials for is normal commercial terms. It is to be seen that there nothing on record to indicate that SIPL had supplied raw materials or inputs or goods to the appellant for manufacturing in order to bring the appellant into the category of job-worker and apply the provisions of Rule 10A of the Central Excise Rules, 2002 for the purpose of discharge of duty liability on the price of SIPL. It is also seen from the finding of the ld. Commissioner (Appeals), that the activity undert ..... X X X X Extracts X X X X X X X X Extracts X X X X
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