TaxTMI 
TaxTMI 
2020 (12) TMI 31
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....r CNo. V(15)/54/ Adj/ASN-II/CGST/Bol/18/285 dt. 07.06.2019 and Order-in-Original No. 06/Commr/BOL/19-20 dated. 26.06.2019 issued under CNo. V(15)102/ Adj/ ASN-I/CGST/Bol/18/426 dated 04.07.2019 respectively, both passed by the Commissioner, CGST Commissionerate, Bolpur 2. The learned Counsel for the appellants submits that issue involved in both the appeals is identical though Orders-In-Original are different and states that the same can be disposed off by a common order. The learned Authorized Representative of the department agreed with the contention of learned Counsel. Both the appeals are taken up together with the consent of both the parties for passing a common order. The facts as culled out in brief are:- Appeal No. E/77116/2019 3. The appellant are engaged in the manufacture of different items of Iron & Steel classifiable under tariff chapter 72 & 73 of Central Excise Tariff Act, 1985 . They are holding Central Excise Registration and availing CENVAT Credit in respect of inputs used in the manufacture of their final products. 4. A show Cause Cum Demand Notice No. 04/Commr/BST/DGP Audit/2018 dt....
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....ulates that where no input-output norms have been notified, the generation of waste and scrap and remnants up to 2% of inputs quantity shall be allowed. v) the appellant company had produced and deliberately, willfully and clandestinely removed finished goods (by showing reduced input output ratio to department) without payment of duty of Rs. 15,43,94,279/- during the period 2012-13 to 201617. The amount of Rs. 15,43,94,279/-was proposed to be recoverable under provisions of section 11 A(4) along with interest under section 11AA of Central Excise Act, 1944. The penal provision under section 11AC of the Act invoked. 5. The appellant submitted reply to show cause notices vide their letter dated. 29.09.2018 and inter-alia denied the allegation made in the Show Cause Notice. The demand of duty was contested besides assailing extended period of limitation and penal provisions. 6. The learned Commissioner, CGST Commissionerate, Bolpur decided the case vide the impugned order date 28.05.2019 wherein he demanded duty of Rs. 15,43,94,279/- under section 11A(10) of the Central Excise Act , 1944 along with ....
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....respectively The appellant assessee short recorded production of finished goods 3246.669 MT and 3411.820 MT respectively as compared to SION. iv) the submissions made by the appellant assessee (in response to audit objection) that norms fixed by SAIL for ISO certified unit did not include short length/end cutting/miss-rolls generation and mill scale/other losses occurred during manufacturing of finished goods is not tenable. v) the Report No. PA 24 of 2009-10 of the Union Government (Indirect Taxes) at point 1.7.1.2: clearly mentions that as per norms fixed by M/s Steel Authority of India Ltd., the production of MS Bars/MS TMT Bar from billets and ingots should be 95% PMT of ingots/billets. All ISO licence holder companies have to observe these norms of production. vi) the appellant company had supplied finished goods i.e. MS Angles, MS Channels and MS Joists to M/s Steel Authority of India Ltd. observing the input-output ratio of 95% as revealed in their agreement with the SAIL; also the appellant had exported finished goods during relevant period, where they had to strictly follow the SIO....
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....nbsp; that duty has been demanded on presumed production derived by applying standard input output ratio @ 95% laid down in SION in Foreign Trade Policy and by referring to proviso to condition 3(d) of Notification No. 52/2003-CUS as amended. He states that Notification No. 52/2003- CUS relates to Export Oriented Units; that the appellant companies were neither EOU nor they had imported any raw material under advance authorization nor procured any goods under any duty exemption scheme. There were no SION number given in the show cause notice and ld. Adjudicating Authority had considered SION number C460 & C514 in the impugned orders which is beyond the scope of show cause notice. The ld. Counsel further submitted that SION under Foreign Trade Policy exhibits average consumption of raw material for manufacture of finished goods. The SION varies from unit to unit; that it depends on number of factors viz nature of infrastructure installed; nature or quality of raw material used; expertise and technical efficiency of staff employed etc. The ld. Counsel stated that norms fixed under SION are not compatible for every industry of same product and same can be modified by....
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.... the appellants and whether they had followed the SION norms as per proviso to condition 3(d) of Notification No. 52/2003-CUS as amended during the period 2012-13 to 2016-17. The second issue is whether in the circumstances and the facts on record, extended period of limited can be invoked. 15. In both the appeals, the duty has been demanded on the basis of an audit objection on difference in production arrived by taking input output ratio @ 95% based on SION and that shown in their Form 3CD, ER-5 /ER-4 returns. The Notification No. 52/2003-CUS has been issued in terms of sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962) and is an exemption notification. It does not prescribe any method/ procedure to determine quantum of production under Central Excise Act for demand of duty . Section 3 of the Central Excise Act -being the charging section, stipulates that duty is to be charged on the goods produced or manufactured. We find that no physical verification of input consumption qua finished goods manufactured thereto was carried out by the department. The duty has been demanded on the basis of audit objection without causing any investigation. It is our....
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....the present cases in hand and accordingly the demands confirmed are not sustainable under the law. 18. We find that the total demand has been computed by applying extended period of limitation in terms of Section 11A of Central Excise Act, 1944. The said section prescribes conditions in under which extended period of limitation as below;- : (4) Where any duty of excise has not been levied or paid or has been short-levied or short-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. In the present case, entire demand is based on t....