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TMI Blog2025 (5) TMI 1528X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal. By the impugned order, the Commissioner confirmed demand of Central Excise duty of Rs. 60,95,448/- under the proviso to section 11A(1) of the Central Excise Act, 1944 [Act] along with interest and imposed an equal amount as penalty under section 11AC of the Act. The facts which lead to the issue of the impugned order are as follows. 2. The appellant manufactures pharmaceutical products and was registered with the Central Excise department and has been paying Central Excise duty. It was also availing credit of CENVAT on the inputs and input services which it had procured. Based on an audit report, a show cause notice dated 3.6.2013 [SCN] was issued to the appellant covering the period September 2009 to May 2010 demanding Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by suppressing the production and clandestine clearance of dutiable Edible Lactose without payment of duty with intention to evade excise duty in contravention of provisions of Rule 4,6,8,10 and 11 of Central Excise Rules, 2002. In terms of the specific directions of the CESTAT "to decide the nature of the lactose imported by the assessee- Appellant- whether it is edible or not", it has since been confirmed that the assessee has imported edible lactose as is evident from the description mentioned in the Bills of Entry submitted by the assessee as detailed in the Bills of Entry submitted by the assessee as detailed in paragraph 22 above. Thus it is not in dispute that the assessee has imported 1567.320 MT of edible lactose during the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed a duty of excise to be called the Central Value Added Tax (CENVAT) on all excisable goods (excluding goods produced or manufactured in special economic zones) which are produced or manufactured in India as, and at the rates, set forth in the Fourth Schedule: Provided that the duty of excise which shall be levied and collected on any excisable goods which are produced or manufactured by a hundred per cent export oriented undertaking and brought to any other place in India, shall be an amount equal to the aggregate of the duties of customs which would beleviable under the Customs Act, 1962 (52 of 1962) or any other law for the time being in force, on like goods produced or manufactured outside India if imported into India, and where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had manufactured edible grade lactose. He only confirmed the demand on the ground that the appellant had cleared edible grade lactose from the factory. Evidently, if the appellant imported edible grade lactose, took it into the factory and got some portion processed through a job-worker into pharma grade lactose and sold the rest, the edible grade lactose would have been taken out of the factory. 10. As can be seen from Section 3 of the Act, the charge of duty of excise (known as CENVAT) is on manufacture or production of excisable goods and not merely on clearing them (i.e., taking goods out of the factory which it had not manufactured). The Commissioner lost sight of the charging section of the Act and confirmed the demand without estab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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