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2019 (7) TMI 901
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....ms of the agreement, at prices included in the agreement as per the negotiation between the two parties. The claim of the appellant is that the goods have been manufactured and supplied on principal to principal basis whereas Revenue, after referring the various clauses of the agreement, have concluded that the transactions are in the nature of job work as outlined in Rule 10 A ibid. 7. The term "job worker" has been assigned specifically meaning as per the Explanation inserted in Rule 10A. In terms of this Explanation any person to be a job worker should satisfy: (i) He should manufacture or production goods; (ii) He should do it on behalf of the principal manufacturer; (iii) He should do it from any inputs or goods supplied by principal manufacturer or any other person authorized by him 8. There is no dispute that the first condition has been satisfied. But dispute is whether the conditions (ii) and (iii) above are satisfied. In terms of the agreement, it is evident that the appellant is required to manufacture the goods exclusively for M/s Zydus, and using their specifications as an agent of M/s Zydus, and using the technical knowhow ....
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....eous application for rectification of mistake and recall of the Final order on the ground that the Tribunal while deciding the appellant‟s appeal has failed to take into account all the issues on which the appeal was filed and the order of the lower authorities was contested. The main issue which has been raised by the appellant in the Misc. application is that while deciding the original appeal No. E/50379/2017, the Tribunal failed to give its judgement on the issue of limitation which was raised by them in their original appeal. The Misc. application regarding rectification of mistake was decided by this Tribunal vide Misc. Order No. 50900/2018 dated 19 November, 2018 wherein it was held that - "4. Having considered the rival submissions, we are satisfied that the ground taken by the appellant as to limitation have not been decided by the Tribunal. We further hold that a ground of law can be taken up at any stage, even if not taken before the lower court, being a ground of law. Accordingly, we allow this ROM application and recall the Final Order dated 19.1.2018 for reconsideration. Put up for final hearing on 3.1.2019." 4. Thus, the Miscellaneous application wa....
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....ent or suppression of facts. (iii) The Hon‟ble Supreme Court in the case of Cosmic Dye Chemical vs CCE, Bombay reported in 1995 (75) ELT 721 (SC) has held that intent to evade duty, must be proved for invoking proviso to Section 11 A(1) of Central Excise and Salt Act, 1944, for extended period of limitation. (iv) The Hon‟ble Supreme Court in the case of CCE vs. Chemphar Drugs & Liniments reported in 1989 (40) ELT 276 (SC) has held that in order to make a demand, under section 11A of the Central Excise and Salt Act, 1944, beyond a period of six months and upto a period of five years something positive other than mere inaction or allure on the part of the Manufacturer or Producer of conscious or deliberate withholding of information, when the Manufacturer knew otherwise, is required to be established. Where Department, had full knowledge about the facts and the Manufacturer‟s action or inaction, is based on their belief that they were required or not required to carry out such action or inaction, the period beyond six months cannot be made applicable. (v) The Hon‟ble Supreme Court in the case of Continental Foundation Jt. Venture vs.....
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....l pronouncements though same were pressed by them. It has further been submitted that all these documents are part of their written submissions in the appeal as well as same were mentioned during the arguments before the Hon‟ble Bench. It has therefore been impressed that considering the above rulings of the Apex Court and facts of the matter, the demand of Central Excise duty is not sustainable on the ground of limitation and therefore, the appeal may be allowed on the ground of limitation. 6. We have also heard the learned DR who has generally supported the findings given in the Order-in-Appeal. 7. After hearing both the sides and on perusal of record of appeal, we find that the issue as to which price is to be taken for levy of Central Excise duty on the clearance effected by the appellant to M/s. Zydus Wellness Ltd., we find that same has already been decided by this Tribunal vide its Final Order No. 50258/2018 dated 19 January, 2018 and we have no ground to interfere with that finding of this Tribunal. However, since the issue of limitation was not discussed in the Final Order, the same is being taken up here for decision. 8. It is a matter of fact that Show cau....
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....ve required for invoking the extended time proviso. To us it appears that appellants‟ conduct has always been transparent and therefore, we feel that charges of willful suppression or mis-statement of facts cannot be invoked in given circumstances of this case. While holding this view, we also rely on the decisions of Hon‟ble Apex Court in the following cases: 1. Uniworth Textiles Ltd. vs. CCE, Raipur 2013-TIOL-13-SC-Cus wherein it has been held as under - "10. The expression "suppression" has been used in the proviso to Section 11A of the Act accompanied by very strong words as "fraud‟ or "collusion" and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11A the burden is cast upon it to prove suppression of fact. An incorrect statement ....
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....ng words "with intent to evade payment of duty". It is, therefore, not correct to say that there can be a suppression or mis-statement of fact, which is not wilful and yet constitutes a permissible ground for the purpose of the proviso to Section 11A. Mis-statement or suppression of fact must be wilful." 3. CCE vs. Chemphar Drugs & Liniments 1989 (40) ELT 276 (SC) wherein it has been held that - 24. Further, we are not convinced with the finding of the Tribunal which placed the onus of providing evidence in support of bona fide conduct, by observing that "the appellants had not brought anything on record" to prove their claim of bona fide conduct, on the appellant. It is a cardinal postulate of law that the burden of proving any form of mala fide lies on the shoulders of the one alleging it. This Court observed in Union of India v. Ashok Kumar & Ors. - (2005) 8 SCC 760 that "it cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility." 25. Moreover, thi....
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....essee would have no opportunity to meet the case of the department. The defaults enumerated in the proviso to the said sub-section are more than one and if the Excise Department places reliance on the proviso it must be specifically stated in the show-cause notice which is the allegation against the assessee falling within the four corners of the said proviso...." (Emphasis supplied) 26. Hence, on account of the fact that the burden of proof of proving mala fide conduct under the proviso to Section 28 of the Act lies with the Revenue; that in furtherance of the same, no specific averments find a mention in the show cause notice which is a mandatory requirement for commencement of action under the said proviso; and that nothing on record displays a willful default on the part of the appellant, we hold that the extended period of limitation under the said provision could not be invoked against the appellant." 4. Continental Foundation Jt. Venture vs. CCE Chandigarh - [2007 (216) ELT 177 (SC)] wherein it has been held that "8. Aggrieved thereby, the revenue has come up in appeal to this Court. In our opinion, the order of the Tribunal must be sustained. I....