2015 (10) TMI 2139 - AT - Central Excise

Court rules in favor of appellant as show-cause notice wrongly issued, no duty liability.

VVF Ltd. Versus Commissioner of Central Excise, Mumbai

The court held that the show-cause notice was incorrectly issued to the recipient instead of the supplier, as per Notification No. 214/86-CE. Since there ... Demand of duty on goods manufactured by the Job worker - Assessee received goods under Notification No.214/86 and not returned the same - Held that:- On perusal of the Notification No.214/86, it is seen that para 2 of the said notification clearly lays down that it shall be the responsibility of the supplier of goods to ensure that the goods are used in the manner specified in the notification. The liability in respect of the goods produced out of, such inputs would be of the recipient of the goods. Thus if only duty has to be demanded on material sent for job work it has to be demanded from the supplier. Similarly, if any duty has to be demanded on products manufactured out of these materials it has to be demanded from the recipient of the goods, i.e. the job-worker. To that extent it is clear that in terms of Notification No.214/86, the liability of payment of duty would fall within the suppler of the goods and not on the recipient. - Notification No.214/86 clearly determines the liability of the sender and that of the receiver of the goods. - show-cause notice itself issued wrongly to the recipient of the goods instead of the supplier of the goods. Learned AR further argued that since the appellant have paid the duty they have assumed the liability and therefore, they cannot escape the responsibility of paying interest and penalty. Reliance on the decision of the Hon ble High Court of Madras in the case of Alstom T&D India Ltd., (2015 (6) TMI 300 - MADRAS HIGH COURT) is misplaced in so far as in that case, the liability of the appellant themselves was no doubt. In this case the liability itself does not exist. In this case, since there was no liability to pay duty, the liability to pay interest and penalty cannot arise. - Decided in favour of assessee. Issues Involved:1. Jurisdiction of the authorities at Sion to issue a show-cause notice.2. Liability for paying duty on goods not returned under Notification No. 214/86-CE.3. Recovery of interest and penalty without determination of duty.4. Revenue neutrality in the context of duty payment and credit.Issue-wise Detailed Analysis:1. Jurisdiction of the authorities at Sion to issue a show-cause notice:The primary question to be decided was whether the jurisdictional authorities at Sion had the jurisdiction to issue a show-cause notice. It was observed that Notification No. 214/86-CE dated 25/03/1986 clearly places the responsibility of ensuring that the goods are used as specified in the notification on the supplier of the goods. The liability for the goods produced out of such inputs lies with the recipient of the goods. Thus, any duty on material sent for job work should be demanded from the supplier, not the recipient. The reliance on the decision in the case of Xerox India Ltd. was found to be misplaced as it involved a lack of clear jurisdiction demarcation, unlike the current case where the notification clearly determines the liability.2. Liability for paying duty on goods not returned under Notification No. 214/86-CE:The appellant argued that the liability of paying duty on goods not received back under Notification No. 214/86-CE is fixed on the supplier of goods. The adjudicating authority had recognized that the liability was of the Kutch unit but fixed it on the Sion unit because they had paid. The appellant cited the Supreme Court decision in Tata Chemicals Ltd. Vs. CC (P) Jamnagar, emphasizing that if a particular method is prescribed by law, it must be followed. Notification No. 214/86 clearly prescribes that liability is to be fixed on the sender of the goods.3. Recovery of interest and penalty without determination of duty:The appellant argued that there was no determination of duty done, and therefore, interest and penalty could not have been recovered. Penalty and interest can only be recovered after the determination of duty under Section 11A, and since no demand was confirmed, no determination of duty was done. The appellant further argued that the situation was revenue neutral, as if the Kutch unit had paid the duty, the same would have been admissible as credit to the Sion unit. The decision of the Hon'ble High Court of Gujarat in CCE, Vadodara Vs. Indeon ABS Ltd. was cited to support this argument.4. Revenue neutrality in the context of duty payment and credit:The appellant asserted that the entire situation was revenue neutral. If the Kutch unit had paid the duty, the Sion unit would have been eligible for credit. The Hon'ble Supreme Court's decision in Nirlon Ltd. Vs. CCE, Mumbai was cited, asserting that in the absence of any malafide intent and a revenue-neutral situation, no penalty could be imposed.Conclusion:The show-cause notice was issued wrongly to the recipient of the goods instead of the supplier. Since there was no liability to pay duty, the liability to pay interest and penalty could not arise. The appeal filed by the appellant was allowed, and the order was pronounced in court.