2010 (12) TMI 728 - AT - Central Excise

Tribunal denies exemption, no deliberate suppression, penalties set aside.

BURN STANDARD CO. LTD. Versus COMMISSIONER OF C. EX., KOLKATA-II

The Tribunal held that the appellants were not eligible for exemption under Notification No. 67/95 for wastes and scraps used in manufacturing exempted ... Demand - Classification - Notification No. 67/95, dated 16-3-1995 - Time limitation - appellants have clearly revealed the fact relating to manufacture of dutiable wagons and wagon parts and exempted wagons and wagon parts - appellants have manufactured final products viz. wagon and wagon parts as well as wastes and scrap which emerged during the course of manufacture of such wagon and wagon parts - appellants have also cleared the final products namely wagon and wagon parts both on payment of duty and without payment of duty availing exemption - Since the condition of notification 67/95 before and after amendment by 31/2001 are not fulfilled, the appellants are not eligible for the benefit of notification 67/95 Regarding penalty - The emergence of wastes and scraps is inevitable during the manufacture of wagons whether cleared on payment of duty or cleared availing exemption - In the facts and circumstances of the case, we are not inclined to agree with the submission that the appellants have deliberately suppressed any information which they were legally required to submit - The emergence of wastes and scraps is inevitable during the manufacture of wagons whether cleared on payment of duty or cleared availing exemption - Decided against the Revenue Issues Involved:1. Eligibility for exemption under Notification No. 67/95.2. Invocation of extended period of limitation.3. Imposition of penalties.Detailed Analysis:1. Eligibility for Exemption under Notification No. 67/95Facts and Arguments:- The appellants, manufacturers of railway wagons and parts, claimed exemption under Notification No. 67/95 for wastes and scraps generated during the manufacturing process.- The Department argued that the wastes and scraps used in the manufacture of exempted wagons and parts do not qualify for the exemption.- The appellants contended that they met the conditions of Notification No. 67/95 by not taking credit on steel products used in manufacturing and maintaining separate accounts for wastes and scraps used in exempted products.Tribunal's Findings:- The Tribunal held that the wastes and scraps used in the manufacture of exempted products do not fulfill the conditions for exemption under Notification No. 67/95.- The amendment by Notification 31/01, which prescribes compliance with Rule 6 of the CENVAT Credit Rules, 2001, is not retrospective and does not aid the appellants.- The Tribunal concluded that the appellants are not eligible for the benefit of Notification No. 67/95.2. Invocation of Extended Period of LimitationFacts and Arguments:- The Department invoked the extended period of limitation, alleging suppression of facts by the appellants.- The appellants argued that they disclosed all relevant facts and that the Department was aware of both duty-paid and exempted clearances.Tribunal's Findings:- The Tribunal observed that the appellants had filed classification lists and claimed the benefit of Notification No. 67/95, and the Department was aware of the clearances.- The Tribunal did not find any deliberate suppression of facts by the appellants.- It was held that the extended period of limitation cannot be invoked.3. Imposition of PenaltiesFacts and Arguments:- The Department imposed penalties under Rule 173Q of Central Excise Rules, 1944, read with Section 11AC of the Central Excise Act, 1944.- The appellants argued that as a Public Sector Undertaking, there was no intention to evade duty, and no relevant facts were suppressed.Tribunal's Findings:- The Tribunal found no evidence of deliberate suppression of facts warranting the imposition of penalties.- It was concluded that penalties should not be imposed.Final Judgments:1. Appeal No. 120/05:- Demand of duty set aside on the ground of limitation.- Penalty set aside.2. Appeal No. 301/05:- Duty demand of Rs. 67,76,266.00 along with interest upheld.- Penalties set aside.3. Appeal No. 542/06:- Demand of duty along with interest upheld.- Penalty set aside.4. Cross Objections:- Disposed of accordingly.Conclusion:The Tribunal rejected the appeals on merits but set aside the demands and penalties on the grounds of limitation and lack of suppression of facts.