TaxTMI 
TaxTMI 
2017 (10) TMI 846
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.... their unit at Aminjikarai, as a packing material Division, CMP-Unit I, registered with Central Excise, during November' 2006. 3. According to the Commissioner of Central Excise, Chennai, the appellant herein, on 27.03.2007, the Officers of HPU, visited CMP-Unit I and upon verification of the records, it was found that CMP-Unit I, had sold both exempted and dutiable goods, during the period from 2002-03 to 2005-06 and the aggregate turnover, exceeded 300 lakhs (prior to 01.04.2004)/400 lakhs (after 01.04.2016) and therefore, the assessee was not eligible to claim exemption for the financial years 2003-04 to 2006-07, as the condition, under clause (vii) of paragraph 2 of Notification No.08/2003 CE, as amended, has not been satisfied. 4. In this regard, a show cause notice, dated 13.06.2007, was issued to the assessee, denying the benefit of SSI exemption, on the above grounds and proposed to demand a sum of Rs. 79,65,089/-, being the duty payable on the packing cartons and boxes manufactured and cleared by them, during the period from 2003-04 to 2006-07 (upto 12/2006), without payment of duty and without satisfying the condition, under clause (vii) of paragraph 2 of the aboves....
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....units, who were using such packing materials for export of ultimate goods. 7. Placing reliance on a decision of CESTAT, Chennai, in the case of Vadapalani Press Vs. CCE, Chennai [2007 (217) ELT 248], the appellant has submitted that when packing materials are cleared to the exporting unit, such clearance shall be treated as deemed export and turnover thereof shall be excluded while computing the SSI exemption benefit, under Notification No. 8/2003-CE dated 1.3.2003. It has used cenvatable input, in manufacture of the dutiable goods. If there arises any duty liability, it shall be entitled to the CENVAT credit of the input, which is available to it, legitimately on production of respective evidence in that regard. 8. Before the Tribunal, the assessee contended that their case is not covered by para 2 (vii) of the Notification and also by para 3A (a) to (e) of the notification above and therefore, if the turnover of deemed export and also the turnover of non-dutiable goods, is excluded, it is still entitled to the SSI exemption with the CENVAT credit allowance. It has manufactured branded printed materials, which needs to be excluded, while computing SSI exemption limit. The assess....
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....cordingly, turnover therefrom shall enter into aggregation process to compute the limit prescribed by the Notification stated above. 9. As both the parties were in dispute as to determination of liability under the mandate of the notification, in question, there shall be no penalty on the appellant upon readjudication of the matter proposed by this order. However, duty liability if any arises shall follow interest if such duty is not already paid or short paid. 10. With the aforesaid observations and directions, the matter is remanded to adjudicating authority to re-do the adjudication a fresh. The appellant is entitled to reasonable opportunity of hearing. A reasoned and speaking order is expected to be passed by learned Adjudicating Authority dealing every legal and factual plea raised by the appellant. Appellant is at liberty to raise all question of law and fact during remand proceeding. 11. Consequential relief if any arises upon readjudication shall follow in accordance with law subject to result thereof." 10. As against the abovesaid order, instant Civil Miscellaneous Appeal has been filed, on the following substantial question of law, "Whether decision of the Hon&#....
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....levied equivalent to the duty amount in cases where duty is short levied or short paid or erroneously refunded by way of fraud, collusion or any willful misstatement or suppression of facts, or contravention of any of the provisions of this Act or the Rules, with an intent evade duty. Rule 25 of Central Excise Rules, 2002, is a penal provision wherein a penalty could be imposed on a manufacturer, on a registered dealer or a warehouse-owner on one of the four grounds enumerated alphabetically. This provision also lays down the quantitative extent to which such penalty could be imposed. When the language of the statute is clear, there should be no room for anything other than what is provided therein and if the situation demands imposition of penalty under Section 11AC of the Act! under Rule 25 of the CER, 2002, then the same has to be imposed. In other words, if the adjudicating authority is able to establish the fact of suppression, with intent to evade payment of duty in the fresh order, penalty naturally becomes imposable. (iv) Once the facts alleged in the demand are proved and established; and based on which the adjudicating authority confirms the duty by invoking extended pr....
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....it is held that, "It is for the Commissioner to verify these particulars of exports to satisfy hims that every consignment of "printed cartons" removed from the appellants factory under an invoice was exported by the buyer. For this purpose, the appellants shall be given an opportunity of adducing documentary evidence and of being personally heard. Ld. Commissioner shall examine such evidence along with other evidence already on record, consider the party's submissions and record fresh findings on the surviving issues". In terms of the said Tribunal order, the adjudicating authority has to establish the genuineness of Form-H certificates that every carton was ultimately exported. Only after correlation of the cartons cleared by the assessee, using Schedule H Forms with the other export documents, the genuineness of the export can be established. Knowing the outcome of such verification only, the adjudicating authority will be able to decide on invoking or not invoking extended proviso in this case. Without such verification, the decision of honorable CESTAT that "as both parties were in dispute as to determination of liability under the mandate of the notification in question, ....
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....07 (upto 12/2006), as detailed in Annexure should not be demanded from them, under proviso to sub-section (1) of Section 11A of the Central Excise Act, 1944; (iii) the appropriate interest payable on the duty payable should not be recovered from them under Section 11AB of the Central Excise Act, 1944; (iv) a penalty should not be imposed on them, under Section 11 AC of the Central Excise Act, 1944 and (v) a penalty should not be imposed on them, under Rule 25 of the Central Excise Rules, 2002. 15. After considering the explanation and affording a personal hearing, material on record, forming a prima facie opinion that the assessee has not offered any explanation, on suppression of facts and considering the decisions relied on by the respondent, notification, under which, exemption was claimed, the Commissioner of Central Excise, Chennai-II Commissionerate, Chennai, has held that the assessee is not eligible for the benefit of exemption, on the basis of value of clearances, in a financial year, in terms of Notification No.08/2003-CE, dated 01.03.2003, as amended for the packing cartons and boxes manufactured and cleared by them, during the period from 2003-04 to 2006-07 (upto....