2003 (12) TMI 370 - AT - Central Excise

Change of Cause Title Allowed; Appeal Dismissed for Cement Clearance Issue

The Tribunal allowed the change of cause title from M/s. Modi Cements Ltd. to M/s. Ambuja Cement Eastern Ltd. based on a management takeover certificate. ... Exemption under Notification No. 37/86-C.E. Issues:1. Change of cause title of the appeal.2. Adjudication order passed by the Commissioner of Central Excise.3. Applicability of Notification No. 37/86-C.E. for cement clearance.4. Date of removal of cement from the factory.5. Burden of proof on the appellant regarding the removal date.6. Production of evidence regarding the clearance date.Change of Cause Title:The applicants sought to change the cause title of the appeal from M/s. Modi Cements Ltd. to M/s. Ambuja Cement Eastern Ltd. due to a management takeover. The Tribunal allowed the change based on the certificate from the Registrar of Companies. Another application for additional documents was dismissed as the certificates provided were deemed insufficient and not evidentiary.Adjudication Order:The appeal was filed against the adjudication order by the Commissioner of Central Excise. The dispute arose from the clearance of cement under Notification No. 37/86-C.E., rescinded in 1990. Allegations were made that cement was cleared after 31-3-90, contrary to the notification, leading to duty demand and penalty imposition.Applicability of Notification No. 37/86-C.E.:The appellants argued that cement clearance occurred before 1-4-90, citing Rule 9A of the Central Excise Rules for duty rate applicability. The Revenue contended that railway receipts issued after 31-3-90 indicated post-31-3-90 removal, disqualifying them from the notification benefit.Date of Cement Removal:The central issue was determining whether the cement subject to duty was removed before or after 31-3-90. The Tribunal analyzed Rule 9A, emphasizing the importance of the actual removal date for duty calculation.Burden of Proof and Evidence Production:The burden of proof rested on the appellants to establish pre-31-3-90 removal. The Tribunal noted the lack of concrete evidence supporting the appellants' claims, highlighting the significance of providing clear evidence to claim exemptions.Production of Evidence:The appellants failed to produce substantial evidence supporting their claim of pre-31-3-90 removal, relying on railway receipts issued post-31-3-90. In contrast, the Revenue presented railway receipts confirming post-31-3-90 removal, which the appellants did not contest. Consequently, the Tribunal upheld the Commissioner's decision, denying the benefit of Notification No. 37/86-C.E. and dismissing the appeal.