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TMI Blog2024 (6) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be available for the clearances effected beyond the stipulated period. Therefore, a show cause notice dated 06.05.2013 was issued to the appellant for the period from April 2008 to February 2013 proposing to demand Central Excise Duty of Rs.20,82,825/- along with interest and for imposing penalties. After due process of law, the adjudicating authority confirmed the demand along with interest and imposed equal penalty under Section 11 AC of the Central Excise Act, 1944 as well as penalty under Rule 25 of the Central Excise Rules 2002. Against such order, the appellants approached the Commissioner (Appeals) who vide order impugned hearing upheld the order passed by the adjudicating authority. Hence, this appeal. 2. The Ld. Counsel Ms. Nimra Ali, appeared and argued for the appellant. 2.1. The Appellant had cleared paper boards to various buyers during the impugned Period by availing exemption under Notification 43/2001 -CE(NT) dated 26.06.2001. The said clearances were made against Annexure-I Certificates issued under the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 ('2001 Rules') received from the buyer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on cannot be denied for mere procedural lapses. Reliance in this regard is placed on the case of Mangalore Chemicals and Fertilizers Ltd. v. Deputy Commissioner, 1991 (8) TMI 83 - Supreme Court. Further reliance is placed on the following cases: * C.C.E & S.T. Rajkot v. Reliance Industries Limited, 2021 (12) TMI 848-CESTAT Ahmedabad. * M/S. S.L. polypack Private Limited v. Commissioner of CGST & CX Howrah Commissionerate, 2023 (1) TMI 931-CESTAT Kolkata * Commissioner of Central Excise, Kolhapur v. Menon Exports, 2018 (4) TMI 666 CESTAT Mumbai. * M/S. Metalink v. Commissioner of' Customs, Kolkata, 2018 (6) TMI 1375-CESTAT Kolkata. A.6 On this ground itself, the Impugned Order merits to be set aside. B. Without prejudice, as per the Notification r/w Rule 3(4) and Rule 6 of the 2001 Rules, only the buyer is liable for any contravention of the conditions stipulated in the Notification. The security bond in this regard is also executed by the buyer. Thus, excise duty, if any, should be recovered only from the buyer. C. Extended period cannot be invoked and the demand of Excise duty to the extent of Rs. 20,25,387/- is barred by limitation: C.1 The Appellant su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Mad.)] C.5 The Appellant further submits that the entire proceedings were initiated based on the statutory records maintained by the Appellant and therefore, extended period of limitation cannot be invoked. C.6 Consequently, the demand for the period from April 2008 to March 2012 to the extent of Rs. 20,25,387/- is time barred and liable to be set aside. D. Interest and Penalty under Section 11 AC cannot be imposed: D.1 It is submitted that since the entire demand is unsustainable, interest and penalty cannot be imposed. Furthermore, to invoke penalty u/s. I IAC of the Central Excise Act, 1944 r/w. Rule 25 of the Central Excise Rules, 2002, Mens rea is necessary and when no fraud/suppression/misstatement is alleged and proved, penalty cannot be imposed. Reliance in this regard is placed on the following cases: * Comm. Ofc. Ex., Chandigarh v. Pepsi Foods Ltd, 2010 (260) E.L.T. 481 (S.C.). * Hindustan Steel Ltd. vs. the State "Orissa 1978 (2) ELTJ159 (SC). , * Kellner Pharmaceuticals Ltd. v. CCE, 1985 (20) ELT80. D.2 In light of the same interest and penalty imposed on the Appellant merits to be set aside. E. Without prejudice, the Impugned Order has erroneously confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be accepted. It is the appellant who has cleared the goods to the buyer which is not covered under Annexure-I certificate. Therefore, the duty liability falls upon the appellant. They have not produced the end-use certificate from the buyer of the goods to whom the goods were cleared which again would show that they did not follow the procedures prescribed under law. 4. The Ld. AR argued that Notification No.43/2001-CE (NT) dated 26.06.2001 prescribes safeguards and procedures for procurement of excisable goods without payment of duty. It also prescribes various conditions. As per the notification condition number (ii) specifically states that "provisions of the central excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules 2001 has to be followed. The appellants have not adhered to these rules. When a law describes a thing to be done in a particular manner, it has to be done in that manner alone. Since the clearances do not conform to the financial year mentioned in the application (Annexure-I), the demand of duty for the clearances beyond the period mentioned in the application is legal and proper. It is submitted that the non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N.T.) Inputs for manufacturing/processing of export goods - Procurement without payment of duty - conditions, safeguards and procedures In exercise of the powers conferred by of sub-rule (3) read with sub-rule (2) of rule 19 of the Central Excise (No.2) Rules, 2001, the Central Board of Excise and Customs hereby notifies the conditions, safeguards and procedures for procurement of the excisable without payment of duty for the purpose of use in the manufacture or processing of export goods and their exportation out of India, to any country except Nepal and Bhutan, namely: - (i) the manufacturer or the processor intending to avail benefit of this notification shall register himself under rule 9 of the Central Excise No.2) Rules, 2001; (ii) provisions of the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 shall be followed, mutatis mutandis; (iii) the manufacturer or processor shall, while filing declaration under the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001, also declare ratio of input and output and rate of duty payable on excisable goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Rule 3 & Rule 4 of Central Excise (Removal of Goods Concessional Rate of Duty for Manufacture of Excisable Goods) Rules 2001, there is no requirement to mention financial year in particular. In the application format of Annexure-I, the quantity and value of goods during the financial year is required to be mentioned. The allegation is that the appellants though mentioned the financial year as 2007-08 has cleared the goods for such Annexure-I certificates for invoices pertaining to subsequent financial years (2009-10) also. 12. The appellant has consistently submitted that the wrong financial year mentioned in the Annexure-I Form is only an error and that the goods cleared to the manufacturer buyer is correct. That as there is no allegation of excess clearances, the benefit of notification ought not to be denied for wrong mention of financial year. This argument advanced by the Ld. Counsel for appellant that the requirement to mention the financial year is only a procedural one for which the substantive benefit of notification cannot be denied is not without force. 13. In the present case, it is the manufacturer buyer who has to make the application before the AC/DC of h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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