TaxTMI 
TaxTMI 
2017 (10) TMI 1183
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....f the department is that the said activity carried out by appellant is covered under third schedule to Central Excise Act and also amounts to manufacture in terms of Section 2(f)(iii) of the Central Excise Act 1944 with effect from 01.03.2003. It was revealed that the appellant were affecting the clearance of the said goods without payment of duty. Therefore, after a detailed investigation a show-cause notice no.01/2006-07 dated 19.12.2006 was issued demanding central excise duty amounting to Rs. 81,80,520/- for period 01.03.2003 to 06.11.2005. In the notice, interest and penalty was also proposed under Section 11AB and 11AC of the Central Excise Act 1944 respectively and confiscation of goods valued at Rs. 835,46,236/- (MRP) was also propo....
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....n 11A(2B), hence no penalty can be imposed. As regards the confiscation, he submits that the goods ordered to be confiscated are admittedly those goods which were cleared by the appellant and was not available for confiscation. He submits that as per the decision of Larger Bench in the case of Shiv Kripa Ispat Pvt. Ltd. - 2009 (235) ELT 623 (T-LB) which was affirmed by the Hon'ble Bombay High Court in 2015 (318) ELT A259 (Bom) it was held that when the goods are not available for seizure, no confiscation can be ordered in absence of such goods, therefore consequently Redemption Fine was not warranted. A similar view was taken in the case of CCE Vs. Finesse Creations Inc. - 2009 (248) ELT 122. As regards import of goods he placed relianc....
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....ity. Accordingly, the classification adopted by the adjudicating authority on the repacked goods is in consonance with classification decided in case of imported goods, which cannot be disputed. In this regard, he placed reliance on the judgement of this Tribunal in the case of Nitin Patki - 2011 (273) ELT 104. 5. We have carefully considered the submission made by both sides. 6. We find that the adjudicating authority as regards classification of the goods under Central Excise followed the classification of the imported goods in the bill of entry. Therefore the same cannot be disputed. We also observed that Interpretative Rules and note 2(a) of Section XVI of Central Excise Tariff Act, 1985 for the goods covered under Chapter 85 provided....
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....hedule] to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to manufacture; or (iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labeling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer, and the word "manufacturer" shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account;" 7. From reading of the Section 2(f)(iii), it is see....
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....g the product excisable. Therefore the activity of manufacture was not disclosed to the department by the appellant. Therefore there is a clear suppression of vital fact from the department. Accordingly, the proviso to Section 11A(1) is clearly invocable hence the demand for extended period is legal and correct. Since we hold that there is suppression of fact on the part of appellant, the payment by the appellant of the duty along with interest will be of no help to the appellant. Therefore, the demand of duty, interest and penalty under Section 11AC is upheld. As regards the issue of confiscation of the goods, we find that the confiscation was made in respect of the goods which had already been cleared and the same was not available. No se....