TaxTMI 
TaxTMI 
2009 (9) TMI 402
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.... proceedings arising out of the eight orders passed by the Deputy Commissioner, Aligarh, in relation to ten show cause notices issued during the period from December, 1999 till July, 2002 relating to the period from 1995-96 to July, 2003. The details of such appeals, disposed of by the Commissioner (Appeals) along with the corresponding date of show cause notice, period for which the show cause notice related to, number and date of the order passed by the Deputy Commissioner and the amount confirmed are described in the table herein below: Appl. No. SCN Date Period O-I-O & Date Amount Confirmed 112/2000 16-12-99 July 1999 to November 99 78/Dem/2000, dated 28-3-2000 D-30,960/- P-20,000/- 113/2000 4-8-99 Jan. 1999 to June 1999 80/Dem/2000, dated 5-4-2000 D-99,360/- (no proposal for penalty in SCN) 245/2001 2-3-2001 1995-96 to 1998-99 (upto 12/98) 31/ADC/IPL/01, dated 4-9-2001 D-3,94,475/- P-3,94,475/- (+Int.) 246/2001 (i) 5-3-01 (ii) 16-4-01 April 2000 to Aug. 2000 Sept. 2000 to Feb. 2001 40/Dem/2000, dated 4-10-2001 D-73,791/- D-84,447/- Total : 1,58,238/- P-1,58,238/- (+Int.) 286/2....
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....ithin thirty days' time during which the delay could be condoned by the Commissioner (Appeals). By the impugned order, the Commissioner (Appeals) dismissed the appeals as far as they relate to the merits of the case and also confirmed the penalties imposed in three of the appeals before him, namely, Appeal Nos. 112/2000, 245/2001 and 286/2001, while reduced the penalties to Rs.1,00,000/- each in Appeal Nos. 246/2001, 140/2003 and 22/2003, whereas reduced to Rs.75,000/- in Appeal No. 141/2003. Being aggrieved, the appellants have preferred the present appeals. 5. It is the case of the appellants that the Instant Tea Powder is a different commodity from tea as defined under the Tea Act, 1953 and this aspect was totally ignored by the lower authorities. It is their further case that, though the Apex Court in the matter of CCE, Cochin v. Tata Tea Ltd., 2002 (142) E.L.T. 3 (S.C.), had opined contrary to the contention of the appellants, the Apex Court did not have occasion to deal with the issue concerning non-levy of cess on the Instant Tea Powder exported by 100% EOU pursuant to Exemption Notification No. 125/84-C.E., dated 26-5-1984 and also the benefits/incentives under Chapter 9....
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....May, 1984 and in the circumstances where the Export Policy clearly speaks of certain benefits to such products in terms of Para 9.29A(vi) thereof and further ignoring the Notification dated 1st September, 2004 issued by the Ministry of Commerce and Industry as also Departmental clarification dated 11th April, 1986. According to the learned advocate, the bar against multi stage levy of cess would be attracted even in cases where the assessee avails the exemption from payment of duty in relation to the inputs procured for the manufacture of the final product and even in such circumstances cess would not be leviable at the final stage of manufacture. He further submitted that, the Notification issued in 2004 clearly discloses the intention of the Legislature to exclude the product in question from the liability of payment of cess. Being so, according to the learned advocate, the impugned order needs to be set aside and the claim of exemption for payment of cess by the appellants should be allowed. 8. The learned DR, on the other hand, drawing our attention to the Notification issued by the Ministry of Commerce on 11th November, 1999 read with the Notification dated 4th April, 1994,....
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....cess, there was deliberate attempt on the part of the appellants to evade the duty and, therefore, there is no substance in the contention sought to be canvassed on behalf of the appellants. 10. Undoubtedly, as rightly pointed out by the learned DR, the issue as to whether the product in question i.e. 'Instant Tea Powder' is tea within the meaning of the said expression under the Tea Act, 1953 or not, stands concluded by the decision of the Apex Court in Tata Tea Ltd.'s case (supra). The Apex Court therein has clearly ruled thus: "The term 'instant tea' is not the brand name of the product manufactured by the assessee but the name of the product itself. It is a variety of tea. Further, the term 'instant tea' gives a meaning that it is a 'tea', which can be prepared/used instantaneously. Merely because the product is known as 'instant tea', it does not cease to be known commercially as 'tea'. Whether tea is consumed as hot beverage or a cold beverage depending upon one's liking and taste, it does not make any difference in deciding whether it is a tea falling within the definition of Section 3(n) of the Act. In our view, the manner of preparation of tea and the process of manu....
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....e respondents have in fact produced several notifications granting exemption in respect of special duty of excise or additional duty of excise and in each of these notifications, we find that the source of power is described as sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 read with the relevant provision of the statute levying special duty of excise or additional duty of excise by which the provisions of the Central Excises and Salt Act, 1944 and the Rules made thereunder including those relating to exemption from duty are made applicable. Moreover the exemption granted under all these notifications specifically refers to special duty of excise or additional duty of excise, as the case may be. It is, therefore, clear that where a notification granting exemption is issued only under sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 without reference to any other statute making the provisions of the Central Excises and Salt Act, 1944 and the Rules made thereunder applicable to the levy and collection of special, auxiliary or any other kind of excise duty levied under such statute, the exemption must be read as limited to the duty of excise payable under the Central....
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.... ex facie those varieties do not include the products classifiable under Chapter Heading 2101.20. 17. For the reasons stated above, therefore, there is no substance in the claim of the appellants about the exemption from payment of cess for the relevant period. 18. As regards the contention about multiple payment of cess, as rightly pointed out by the authorities below, there is absolutely no material brought on record in that regard and it is a mere argument in the air without any factual matrix in support thereto. 19. As regards the contention that the Apex Court while delivering decision in Tata Tea Ltd.'s case (supra) had occasion to deal with the issue concerning non-levy of cess on instant tea being exported by 100% EOU pursuant to the Exemption Notification No. 125/84-C.E., dated 26th May, 1984 read with Export Policy and clarification by Department, the same is also devoid of substance for the reasons stated above. As already seen above, even under the said Notification the appellants are not entitled to claim exemption in relation to the obligation to pay the cess. Neither the Export Policy nor the Departmental clarification is of any help in that regard. The Depa....
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....he Act. This duty is not the same thing as the duty levied in terms of Section 3(1) of the Cess Act. Though both levies are described as duties of excise, the authority for levy is, as already noted, through separate and different enactment's. Therefore, the exemption by means of a notification issued under Central Excise Rule 8(1) exempting goods from duty (leviable under the Central Excises Act) will not constitute an authority for exemption from the cess leviable under the Cess Act. For this purpose, there has to be an exemption notification specifically in terms of Section 3(4) of the Cess Act read with Central Excise Rule 8(1). No such notification has been placed before us, nor is it contended that there is any such notification." 22. That brings us to the last point sought to be contended on behalf of the appellants regarding non-entitlement of the Department to issue show cause notice for a period beyond one year. It is noticed that, the issue which is sought to be canvassed was never raised before the lower authorities. Even in the Memo of Appeal, the same has not been raised. The appellants are not entitled to raise new grounds of challenge at eleventh hour. However, c....