TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 1048
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....he ground of total lack of jurisdiction as well as the claim being barred by limitation. This appears to be the reason for entertaining the writ petition by this Court and granting an interim order. Thus, at this juncture, it will be unfair for this Court to relegate the petitioner to avail the alternative remedy in the light of the grounds of challenge made by the petitioner to the impugned order. 3. The short issue which falls for consideration in the instant case is whether the petitioner, who had labelled the retail packs of biscuits for the purpose of complying the statutory obligation under the Standards of Weights and Measures Act, 1976, and under the Prevention of Food Adulteration Act, is said to have undertaken the process of manufacture and if so, whether the petitioner should have registered themselves with the respondent department and whether they are liable to pay the Central Excise Duty. If the petitioner is liable to be registered with the department and required to pay the Central Excise Duty, whether the impugned demand is sustainable in law having been made after expiry of the period of limitation by invoking the extended period of limitation under Section 11A ....
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....so, the question of labeling them to pay the excise duty does not arise. Further, it was submitted that Section 11A of the Act cannot be invoked as there is no suppression of fact and non-intimation of their activities to the respondent department cannot amount to suppression and therefore, the proceedings are barred by limitation. Further, without prejudice to those contentions, it was submitted that the levy of Central Excise Duty at the rate of 16% is wholly unwarranted. 7. The respondent, after receiving the reply, referred to Note 3 of Chapter 19 of the Central Excise Tariff Act, 1985, and held that the process of affixing label to make the product marketable to the consumers amounts to manufacture, even if it is done to fulfill the requirements of some other statutes. With regard to invocation of extended period of limitation, the respondent held that the petitioner having not taken out the registration from the department under the Act, it amounts to suppression of facts with intention to evade the payment of Central Excise Duty. The said order-in-original dated 30.01.2003 is impugned in this writ petition. 8. Heard Mr.Sivam Sivanandraj, learned counsel appearing for the p....
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.... (4) Where the goods are transformed into goods which are different and/or new after a particular process, such goods being marketable as such. It is in this category that manufacture of goods can be said to take place." 12. The CESTAT, in the case of German Remedies Limited v. Commissioner of Central Excise [2003 (162)ELT429 (Tribunal-Delhi)], considered an identical issue with regard to medicines and after taking note of earlier decisions, held that affixing the sticker indicating the name of the importer and MRP as per the requirement under the Standard of Weights and Measures Act does not amount to labeling/re-labeling and does not amount manufacture in terms of Note 4 of Chapter 33 of the Tariff. Further, it was held that pasting of sticker on the imported product to indicate the name of the importer and MRP which is the requirement under the Standards of Weights and Measures Act would not attract the Chapter Note. This decision was affirmed by the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Mumbai Vs. M/s.German Remedies Limited (I.A.No.3 in Civil Appeal No.145 of 2004, dated 19.10.2006). Thus, the first issue which falls for consideration has to....
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....ort-paid or erroneously refunded, by the reason of --- (a) fraud; or (b) collusion; or (c) any wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by any person chargeable with the duty, the Central Excise Officer shall, within five years from the relevant date, serve notice on such person requiring him to show cause why he should not pay the amount specified in the notice along with interest payable thereon under section 11AA and a penalty equivalent to the duty specified in the notice." 14. In Commissioner of Central Excise, Chandigarh Vs. Punjab Laminates (P) Ltd. [(2006) 7SCC 431], the Hon'ble Supreme Court pointed out that if the proviso provides for an exception, it is not the Rule and a case, therefore, has to be made out for attracting the proviso to Section 11-A(1). The said decision was followed and quoted with approval in Larsen & Toubro Ltd. Vs. Commissioner of Central Excise, Pune II [(2007) 9 SCC 617], wherein it was pointed out that allegation in regard to the suppression of facts must be clear and explicit so as to enable the....
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....cts or by making willful mis-statement or by committing fraud or collusion. Thus, in the absence of any such specific allegation in the show cause notice, the authorities cannot mechanically impose penalty under Section 11AC of the Act. After the assessee submitted their explanation, the Adjudicating Authority while passing the order dated 24.09.2002, only observed that there is possible manipulation of scrap accounts to show higher production than what would have been normally produced and there is no finding that the first respondent/assessee was guilty of willful mis-statement or suppression of facts or act of fraud with an intention to evade payment of duty. The first Appellate Authority also did not go into the said aspect and rejected the appeal by merely observing that the order of the Original Authority is just, fair, and calls for no interference. The Tribunal while confirming the demand, set aside the penalty and interest. In paragraph 4 of the impugned order passed by the Tribunal, the Tribunal, by relying upon its earlier decision, observed that the duty amount is paid by assessee before issuance of show cause notice, therefore no penalty can be imposed under Section 11....