AI Drafter 
TaxTMI 
TaxTMI 
2016 (5) TMI 741
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.... footwear parts i.e. PVC Soles and Rubber-sheets. PVC Soles are dutiable goods @ 16% while Rubber-sheets have nil rate of duty. The dispute relates to grant of benefit of Small Scale Industry exemption notification dated 1 March 2003. The relevant portion of the said exemption notification is as follows: " Para 2: The exemption contained in this notification shall apply subject to the following conditions, namely (i) ............. (ii) ............... (vii) the aggregate value of clearance of all excisable goods for home consumption by manufacturer from one or more factories or from a factory by one or more manufactures, does not exceed Rupees three hundred lakhs in the preceding financial year. Para 3 : For the purpose of determining the first clearance up to an aggregate value not exceeding one hundred lakh rupees made on or after the 1st day of April in any financial year, mentioned against serial No.1 of the said Table, the following clearance shall not be taken into account, namely :- (a) clearance, which are exempt from the whole of the excise duty leviable thereon (other than an exemption based on quantity or value or ....
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.... Officers, the said amount should not be confirmed and appropriated against the aforesaid demand; (b) Penalty should not be imposed upon them under Rule 25 of Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944 for their deliberate suppression of facts with intention to evade central excise duty as discussed supra and contravention of the provisions of Rules, 4, 5, 6, 9, 10, 11 and 12 of the of the Central Excise Rules read with Notification No.08/2003 dated 1 March 2003; (c) Interest should not be demanded from them under section 11-AB of the Central Excise Act, 1944. The Assistant Commissioner, Central Excise by order dated 26 October 2005 ordered for confiscation of the seized goods since the rubber-sheets manufactured by the respondent were excisable goods though subject to nil rate of duty. It was held that for clearance value of all excisable goods, the value of clearance of rubber-sheets had to be taken into account in terms of the notification dated 1 March 2003 for the financial years 2003-04 and 2004-05. The respondent filed an appeal before the Commissioner (Appeals), Central Excise, Kanpur. The appeal was dismissed by t....
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.... be decided on merits and the order of the High Court is reproduced below: "We have heard Shri Ashok Singh, learned counsel for the central excise department. This central excise appeal under Section 35G of the Central Excise Act, 1944 has been filed by the Commissioner of Central Excise, Kanpur on the following question of law:- "Whether the order passed by Customs, Central Excise & Service Tax Tribunal, New Delhi which is based on manipulated records introduced in connivance with the officers of the Department, and considered by adjudicating authority without verifying their genuineness, can be amended/ modified by Hon'ble High Court?" We do not find that the question of law has been correctly framed. In any case the question has been raised on the basis of the facts stated in the memo of appeal namely that the declaration were not filed for the year 2002-03 and 2003-04 and were not available on the records of the department. The stand taken in the proceedings that declarations were submitted are based upon the photocopies of which the entries in the receipt register showing receipt of the declarations were found time barred and fraudulentl....
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....ceipt registers were fraudulently inserted. The Tribunal found that merely because there were interpolations/overwritings in the receipt registers of 2003-04 would not per se lead to an inference that interpolations were by or at the instance of the assessee and that there must be substantive evidence to establish a nexus between interpolations and the participation by the assessee. As regards the miscellaneous application filed for recall of the order, the Tribunal recorded the sequence of events in paragraph 10 which are as follows: "10. What then are the sequence of relevant events, the grounds pleaded and the facts established by Revenue to seek rectification of the final order dated 15.2.2013? A summary : (i) Assessee pleaded before Commissioner, Central Excise, Lucknow (Adjudicating Authority) that for the financial years 2003-04 and 2004-05 they had declared the value of clearance on 14.4.2003 and 12.11.2004 respectively, separately indicating value of clearance of PVC soles and rubber sheets. On this basis, assessee claimed that since there was disclosure of relevant facts, there was no justification for invocation of the extended period (vide reply to the....
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....version of the application was filed on 21.7.2014; and (viii) Section 35C(2) of the Central Excise Act, 1944 authorises the Tribunal to rectify any mistake or amend any order (final order) passed under sub-section (1), if it is brought to our notice by an aggrieved party that the order suffers from a mistake apparent from the record." In this connection, the Tribunal concluded as follows: "15. Revenue does not plead nor establish before us that order dated 15.2.2013 is vitiated on account of any fraudulent document which was the basis for the conclusion as to illegality of invoking the extended period of limitation. Revenue's contention is that the declarations dated 14.4.2003 and 12.4.2004 (relevant to financial years 2003-04 and 2004-05) were never filed by assessee. This assertion is predicated on the fact that originals of these declarations are not currently available in Revenue records. Inference that the assessee did not file these declarations is based on the singular fact that there are overwritings/interpolations in the receipt register of 2003-04, as opined by the Forensic Consultant. On the basis of this opinion, Revenue seamlessly proceeds to c....