TaxTMI 
TaxTMI 
TaxTMI 
2022 (8) TMI 1249
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....57;envat duty and Rs. 1,91,755.00 as Education Cess) for the year 2002-03 (for March 2003) to 2006- 07 (upto January 2007) from M/s. Vansha Fragrances (Pvt.) Ltd. 13th Mile, Tamulikuchi, G.S. Road, Byrnihat, Meghalaya in terms of proviso to Section 11A of Central Excise Act, 1944. 4.2 I also order for appropriation of the amount of Rs.23,84,947.00 (Rupees twenty three lakhs eighty four thousand nine hundred forty seven only) [ Central Excise Duty Rs.21,96,608.00, Education Cess Rs.43,931.00] and Interest Rs.1,44,408.00 ] which is paid by the said TR. 6 Challan No. 01/06-07 dated 26.02.07 for the period from March '06 bk W section 11 of the Central Excise Act, 1944. 4.3 I also order for recovery of interest in terms of Section 11AB of the Act ibid from the said factory. 4.4 I also impose a penalty of Rs.2,14,11,650.00 (rupees two cores fourteen lakhs eleven thousands six hundred and fifty only) on M/s. Vansha Fragrances (Pvt.) Ltd. 13th Mile, Tamulikuchi, G.S. Road, Byrnihat, Meghalaya under Section 11AC of the Act ibid. 4.5 I also impose a penalty of Rs. 2,00,000/- (Rupees Two Lakhs) only each on Shri Shiw Bhagwan Sharma S/o. Late Mohanlal Sharma, (ii) Shri Pawan Kumar ....
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.... levy of Excise Duty. From record, it is seen that the appellant, who started manufacture of the products similar in 2003, did not approach the department with intimation of the same and did not take registration with the Jurisdictional Central Excise Authorities. Only in 2006, they appeared to have got in touch with the Central Excise Superintendent who issued clarification dated 28/02/2006 to the effect that they were not required to obtain Central Excise Registration. In these circumstances, we are of the view that the appellant cannot be absolved of the allegation of suppression. Consequently, we uphold the findings of the lower authority justifying the demand of Central Excise by invoking the extended period of time limit under Section 11A. 9. The other argument which is required to be considered is the submission that the appellant unit is situated in the North East Area where the benefit of exemption Notification No. 32/1999 dated 8/7/1999 was available to units set up in the area. However, it is not clear whether the appellant has claimed the benefit of such Notification before the Jurisdictional Authorities. Since, this is a conditional notification, the benefit of the s....
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....time. According to the department, the excise duty component would be reimbursed upon deducting the cenvat credit already claimed. The department also says that at a subsequent stage, the extent of exemption granted was that the amount reimbursed would be only to the extent of the excise duty on the value added to the product in the course of the manufacture. 7. More importantly, the department points out that not every manufacturer in Meghalaya would be entitled to the exemption by way of reimbursement or otherwise. In such context, several notifications published by the Central Excise authorities have been relied upon to demonstrate that the initial scheme was restricted to certain areas of Assam and Tripura and, later, designated places in Meghalaya were also included. According to the department, the manufacturing unit of the appellant is not located within any area designated by the applicable notification for the appellant to claim exemption by way of reimbursement. 8. This aspect of the matter was not taken into consideration, whether in the course of the order-in-original being passed or in the appellate order of the Tribunal. This is a question of fact on which there c....
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....2003-04 was extremely low and same picked up only in 2004- 05. In the event the appellant was entitled to exemption as claimed, it requires to be ascertained when the appellant's manufacturing unit exceeded the turnover of Rs.1 crore for the excise duty to be claimed only thereafter. 12. The three key aspects of the matter have not been addressed in the order of the Appellate Tribunal dated January 23, 2019 in the appeal arising out of the order-in-original of March 16, 2009. These issues cannot be conveniently addressed in the present proceedings which are conducted on summary basis on affidavit evidence. Further, as to whether a person is entitled to an exemption or not based on the geographical location of the manufacturing unit, is essentially question of fact that has to be ascertained. 13. Accordingly, the order impugned dated January 23, 2019 is set aside and the matter is remanded to the Appellate Tribunal with a request to render the opinion on the three key aspects indicated herein and on any other issue that may be relevant for the purpose of adjudication. The Tribunal is also requested to pass its reasoned order within three months of the receipt of the authenticat....
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....39;ble Tribunal which requires to be discussed allowing exemption to the appellants. Further, the Appellant has not manufactured "Soya Bari" using "Gulab Brand" prior to 1st December,2006. Hence, the appellant unit is eligible for claiming SSI exemption for the financial Year 2002-03, 2003-04 to the extent of maximum benefit of exemption allowed under the Notification No. 8/2003 CE, dated 01.03.2003 upto maximum of progressive clearance of Rs.1.00 Crore at Nil rate of duty in the financial year 2003-04. This aspect has not been considered by the Tribunal in its Final Order dated 01.03.2019 which required to be considered by the Hon'ble Tribunal. * For that the demand raised by the Ld. Commissioner, Central Excise, Shillong, invoking extended period of limitation and raising demand for the period from March, 2003 to January, 2007 is not sustainable in law. The impugned Order in-Original is liable to be set aside on the Grounds of limitation. It is submitted that in normal case, the demand is to be raised within One (1) Year from the due date of filing of Statutory Returns ER-I under Sec. 11A of the Central Excise Act, 1944 and extended period of limitation is applicable in cas....
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....ty of extended period of limitation is applicable in the present case. There will be no demand of duty for the period from March, 2005 to November 2006 as the period is beyond limitation of one year. * For that the Appellants discharged their Central Excise Duty liability w.e.f 1st March, 2006 from the date of enforcement of exemption Notification No. 3/2006-CE, dated 01.03.2006 at 8% Ad valorem till January, 2007. Vide Notification No. 3/2006-CE, dated 01.03.2006 (Ref. SI.No.28, CETH - 2106 - Rate of Duty -8 %, Condition - No.] The Appellants are entitled to refund of whole of the duty paid under North East Area based exemption Notification No. 32/1999-CE, dated 08.07.1999. * For that the Appellants unit is located in the exempted area covered under Notification No. 32/99-CE, dated 8th July, 1999. Hon'ble Supreme Court in the case of Union of India Vs. V.V.F Ltd. and Others reported in 2020 (372) ELT. 495 (S.C), wherein the Hon'ble Apex Court settled the law, referred Paragraph -16. ....... The present case in hand the situation of dutiability and claiming refund under North East Area based Exemption is a complete revenue neutral situation and there cannot be any possi....
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....to the terms of those sub-headings and any related sub-heading Notes and, mutatis mutandis, to the above rules, on the understanding that only sub-headings at the same level are comparable. For the purposes of this rule, the relative Section and Chapter Notes also apply, unless the context otherwise requires." In the present circumstances the product 'Soya Bari' was not specifically classified in the First Schedule to Central Excise Tariff Act,1985 upto 28.02.2006. Hence, no duty is payable by the Appellants classifying under a wrong Chapter Sub- Heading determined by the department which is not in accordance with Sec.2 of the Central Excise Tariff Act 1985. * For that the department has committed an error in classifying the goods 'Soya Bari' on the basis of the classification mentioned in the Exemption Notification No.3/2006 CE. dated 01.03.2006 as shown at Sl. No. 29 - Texturised vegetable Product (Soya Bari) classified under Tariff Heading 2106 90 and demanding duty prior to the date of Notification is not tenable in the eye of law. It is submitted that issue of classification disputes is to be decided independently on the basis of words and language used in th....
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....ffect earlier classification and the demand raised by the department is not sustainable and the impugned Order in Original is liable to be set aside. * For that the department has classified the product 'Soya Bari' under the Tariff Entry 2108.99 for the period from March 2003 to February 2006 without considering the nature of the product. It is settled by the Apex Court in the case of Collector Vs. Krishna Carbon Paper Co., 1988 (37) ELT. 480 (SC), that where no definition of a Tariff Entry is provided in the statute itself, for ascertaining a correct meaning thereof, reference to dictionary meaning is not always a safe guide but it is apt to be a somewhat delusive. The correct guide is the trade meaning. The trade meaning is one which is prevalent in that particular trade where the goods is known or traded. If special type of goods is subject-matter of a fiscal entry, then that entry must be understood in the context of that particular trade, bearing in mind that particular word. Therefore, commercial parlance test is the best test for classification of the gods, when not artificially defined by law. It is further, held by the Apex Court and High Courts in a plethora of ....
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....ble in the eye of law and the impugned Order in Original is liable to be set aside. * For that the contention of the department as mentioned in paragraph 3 of the Show Cause Notice on carrying on production and clearance of "Soya Bari" under GULAB Brand by the Appellants from the commencement of Commercial production is a mere presumption having no concrete evidence and hence, not sustainable. In this context, it is submitted that the Appellants obtained the consent to use GULAB Brand from M/s. Vinita Soya Products, Guwahati on 1st December, 2006 and used to clear their product using GULAB Brand w.e.f 01.12.2006 and onwards as evident from letter of No objection Certificate dated 01.12.2006 which is in the department custody on resumption of documents and prior to 01.12.2006 the Appellants was selling unbranded goods in the market through whole seller dealers. It is further, submitted that the Product "Soya Bari" cannot be taxed under Chapter Sub-Heading 2108.99 as the said goods was not covered under the Chapter Sub-Heading 2108.99 upto 28th March 2006. Further, for the sake of argument, the Appellants was also eligible for SSI exemption for the Financial Year 2002-03 and 2003-0....
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....d 8th July, 1999 as amended by Notification No. 23/2000-CE, dated 29.03.2000 and is eligible for claiming exemption of the duty paid by way of refund for a period not exceeding 10 years and as such, there is no question of evasion of duty as alleged in the Show Cause Notice. The Appellants claimed their Refund under North East Area based exemption for the month of March, 2007 and April, 2007. Copy of the claim of Refund is Ext. - M for reference. The Ld. Commissioner, Central Excise, Shillong, has committed an error by upholding the allegations blindly and without applying her mind judiciously. Hence, the impugned Order- in-Original is liable to be set aside on this ground. * For that the Appellants has already discharged their duty liability much before the issue of the Show Cause Notice. The Appellants has also approached the department for registration of their unit. The department clarified that Registration is not required in the appellant's case as the product manufactured by them do not attract duty. From the above facts and in the circumstance of the case, the Appellants in no case have mala fide intention in evading duty. The allegation of the department intentionall....
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.... in light of CESTAT Order No E D/75189-75191/2019 dated 23.01.2019 (Refer para 2.4 above) and the decisions of Hon'ble High Court of Meghalaya dated 08.02.2022 (refer para 2.5 and 2.6 above). 4.2 Hon'ble High Court has vide its order, remanded the matter to the tribunal for consideration of three aspects framed by them in their order. From the facts of the case and the order of the Hon'ble High Court it is quite evident that the issue in respect of classification of the goods namely 'Soya Bari' has attained finality with the order of CESTAT dated 23.09.2019 and the only issues that need to be considered are the three aspects for which matter has been remanded. The three aspects that have been highlighted by the Hon'ble High Court are as follows: (i) Whether in facts and circumstances of the case the benefit of exemption Notification No 8/2002-CE and 8/2003-CE (as amended from time to time), will be admissible to the appellant 1 during the period 2002- 03 and 2003-04. (ii) Since the SSI Exemption is granted for the turnover upto the value of Rs 1 crore, the time when the appellant crossed this turnover limit of one crore needs to be ascertained. (iii) Whether for the re....
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....ter Note 9 of the same Chapter 21 which reads as "Heading No. 21.08 inter alia includes (a) protein concentrates and textured protein substances ; (b).......(c).......upto (). Soya Bari is nothing but "protein concentrates" and/or "textured protein substance" as mentioned in the said Chapter Note 9 and therefore, is classifiable under 21.08 as "edible preparation, not elsewhere specified" and I find that it is appropriately classified under Sub heading No. 2108.99 as "other" attracting duty @ 16% Adv. I find that Chapter Note 9 as mentioned above unambiguously includes in it the impugned product, "Soya Bari." The rules of interpretation as referred to by the said assessee are therefore superfluous and not sustainable in law. When the Chapter Note very clearly includes in its ambit the same product very specifically, there can be no question raised on the same, since all the rules of interpretation etc. are satisfied. It is provided in Rule 5 of the Rules of interpretation that " for legal purpose, the classification of goods in the sub- heading of heading shall be determined according to the terms of those sub heading and any related Chapter Note and, mutatis mutandis, to the above....
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....ation 3/2006 on 01.03.2006 and that prior to issuance of this notification, "Soya Bari" was not classifiable under any sub- heading or heading in the Central Excise Tariff Act, 1985. I find that this Exemption Notification mentions "Soya Bari" in bracket after the phrase "textured vegetable protein" which also leads to the only conclusion that this phrase "textured vegetable protein" as mentioned in Chapter Note 9 of Chapter 21 of the erstwhile schedule to the Central Excise Tariff Act in force during the period till 28.02.2005 as well as in sub heading 21061000 as effective from 01.03.2005 also included in it the impugned goods "Soya Bari." The sub-heading 2106000 reads as "Protein concentrates and textured protein substances," which is the same as in the said exemption Notification. The only difference is that the exemption notification bears an additional explanatory phrase "Soya Bari" within a bracket. This bracketed specification is meant only to specify it that the exemptions would be available only to "Soya Bari" and not to any other products/substances which may be classifiable under this sub- heading 21061000. The plea of the said factory that the said sub-heading included....
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....d in the name M/s Vinita Soya Products and that the said factory has been authorized to use the brand name free of cost. He also stated that though M/s Vansha Fragrances Pvt. Ltd. is having a separate legal entity, 2(two) Directors of the company are common to their partnership firm, M/s Vinita Soya Products. Moreover, they have one common trading firm in the name of Sharma and Sharma, located at Kayal Market, Fancy Bazar, Guwahati - 1 through which they sell the products of both the firms. 3.3.1 It is therefore apparent from the above statements that a common brand name i.e. "Gulab Brand" was used for marketing of the products manufactured by the said factory as well as manufactured by M/s Vinita Soya Products, who happens to be the brand name owner. It is also apparent that the same products bearing the same brand name were sold from the common marketing outlet as stated by Shri Pawan Kumar Sharma. It leaves no room for doubt that the goods manufactured at Vinita Soya Products and Vansha Fragrances were marketed under the same Brand name i.e. "Gulab Brand" from the same outlet of marketing and the goods reached to ultimate customers like Shri Narendra Kumar, who had confirmed to....
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....tions of the SSI Exemption Scheme under the said Exemption Notifications, therefore, discussions on other conditions of the SSI Exemption Scheme like the threshold limit etc becomes redundant. 3.5 The assessee have contended that they have discharged the duty liability by depositing the excise duty of Rs.22,92,182.00 along with Education Cess of Rs.45,736.00 and Interest of Rs. 1,44,408.00 and that they have no other liability towards payment of Central Excise duty as no duty was payable during period till 28.02.06, as their products were not included in the Central Excise Tariff Act and for that they are eligible for SSI benefit. But in view of the discussions made in the paragraphs (supra), I am of the view that the classification as contained in the show cause notice is appropriate and they are not eligible for SSI Exemption benefit in view of the prevailing law in force during the relevant time. The said factory is, therefore, liable to pay the differential amount of Rs. 1,89,79,356.00 towards CENVAT duty and Rs. 1,91,755.00 towards Education Cess which is recoverable from them in terms of Proviso to Section 11A(1) of Central Excise Act, 1944. The amount so deposited by the sa....
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....under with intent to evade payment of duty in as much as they suppressed the fact that they had given an undertaking before the Department vide their letter cum-under undertaking dated 04.09.2006 before obtaining the any further said certificate dated 13.09.2006. The undertaking given by the said factory reads as, "However we do hereby undertake that in case of any further clarification over the Excise Tariff you or we find it falling under Central Excise and attracting duty, we would immediately deposit the duty amount, as soon as it comes to our knowledge.' 3.7.1 In view of the above discussions and in view of the fact and circumstances of the case, it leads to the only conclusion that since their inception the said assessee has been resorting to willful misstatement, suppression of facts and contravened provisions of Central Excise Act, 1944 and the rules made thereunder with intent to evade payment of duty, as is evident from the fact on record during the course of this proceeding. It is also on record that their sister concern M/s Vinita Soya Products also adopted the same Modus Operandi and evaded Central Excise duty which is dealt with in a separate proceedings before a sep....
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....pply to specified goods bearing a brand name or trade name, whether registered or not, of another person, except in the following cases: ....... Explanation,- For the purposes of this notification,- (A) "brand name" or "trade name" means a brand name or a trade name, whether registered or not, that is to say, a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person; (B) where the specified goods manufactured by a manufacturer bear a brand name or trade name, whether registered or not, of another manufacturer or trader, such specified goods shall not, merely by reason of that fact, be deemed to have been manufactured by such other manufacturer or trader. ..." 4.5 Hon'ble High Court has in its order in para 9, have referred to this aspect and have directed the tribunal to arrive at the finding of fact, after taking into consideration the submission of the appellant that they started....
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....ry 2007) and also they have suppressed the material facts from the Central Excise Department." 4.7 From the facts as recorded in the Show Cause Notice and the adjudication order it is quite evident that the benefit of SSI exemption has been denied to the appellant not only for the reason that they were clearing the goods under the brand name "Gulab Brand' but also for the reason that they had crossed the maximum prescribed limit of Rs 3 crore for availing the said exemption in the year 2003-04. Further it is quite evident that the Appellant 1 is a Private Limited Company and the brand name used for the clearance of the said goods is registered in the name of partnership firm wherein the two Directors of the said unit are partners. The Brand Name is registered in the name of partnership firm, M/s Vinita Soya Products since 10.10.1994. In fact this fact itself is enough to hold that the appellant 1 was clearing the goods under the brand name of "Gulab Brand'. However revenue has further adduced evidences by making the market enquiries and recording the evidences in the form of statement of the Directors of the Appellant 1 and purchaser of the goods. It is not just the statement but ....
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....ence Act and the Code of Criminal Procedure, do not, in terms, govern the onus of proof in proceeding under Section 167(8) of the Act. In conducting these penal proceedings, therefore, the Collector of Customs is to be guided by the basic canons of criminal jurisprudence and natural justice. 30. It cannot be disputed that in proceedings for imposing penalties under clause (8) of Section 167, to which Section 178A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, or universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it-"all exactness is a fake". El Dorado of absolute Proof being unattainable, the law, accepts for it, probability as a working substitut....
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....ent altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. 43. If we may so with great respect, it is proper to read into the above observations more than what the context and the peculiar facts of that case demanded. While it is true that in criminal trials to which the Evidence Act, in terms, applies, this section is not intended to relieve the prosecution of the initial burden which lies on it to prove the positive facts of its own case, it can be said by way of generalisation that the effect of the material facts being exclusively or especially within the knowledge of the accused, is that it may, proportionately with the gravity or the relative triviality of the issues at stake, in some special type of case, lighten the burden of proof resting on the prosecution. For instance, once it is shown that the accused was travelling without a ticket; a prima facie case against him is proved. If he once had such a ticket and lost it, it will be for him to prove this fact within his special knowledge. Similarly, if a person is proved to be in recent possession of stolen....
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....yond reasonable doubt', as the decision is being rendered in quasi-judicial proceedings. 4.9 Thus we conclude that on the first issue i.e. in respect of denial of the benefit of SSI Exemption, for the reason that Appellant 1, was manufacturing and clearing the goods under the brand name 'Gulab Brand', the impugned order cannot be faulted with. 4.10 Since the benefit of SSI Exemption cannot be extended to the appellant for the reasons stated in para 4.9, the question as to when they have crossed the exempted turnover limit of Rs 1 crore is of no significance. From the turnover as recorded in the para 4.6 above as per para 9 of the Show Cause Notice and as per Annexure A to the Show Cause Notice, Appellants value of clearance during each year was much higher than Rs 1 crore. 4.11 Now coming to the issue of limitation for making the demand. Appellants have contended that they did not had any intention to evade the payment of duty. The crux of their submission is that what so ever duty they would have paid would be admissible to them in form of cash refund as per the notification No 32/1999-CE which is applicable them to them and the entire exercise is thus revenue neutral. They als....
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....ated 07.04.2008. 02.06.2008 Appellant submitted Defense Reply defending their case and requested the id. Adjudicating Authority to drop the Demand proceedings against them. 4.12 Counsel for the appellant has relied upon the following decisions in his support: i. Continental Foundation [2007 (216) ELT 177 (SC)] ii. VVF Ltd [2020 (372) ELT 495 (SC)] iii. Nirlon Ltd. [2015 (320) ELT 22 (SC)] 4.13 As per the Section 11 A (1) of Central Excise Act, 1944, the normal period for making the demand in respect of the duties short levied or short paid/ Not levied or not paid is one year. However in case where the short levy/ short payment or non levy/ nonpayment is on account of fraud, collusion or any willful misstatement or suppression of facts or contravention of any of the provisions of Act or the rules made thereunder with intent to evade payment of duty, the demand as per proviso to this section can be made within five years. In the case of Continental Foundation referred above Hon'ble Apex Court has observed as follows: "9. We are not really concerned with the other issues as according to us on the challenge to the extended period of limitation ground alone the appella....
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....ssion or mis-statement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11A. Mis- statement of fact must be wilful." 4.13 In case of Nirlon Ltd., Hon'ble Apex Court has held as follows: "9. We have ourselves indicated that the two types of goods were different in nature. The question is about the intention, namely, whether it was done with bona fide belief or there was some mala fide intentions in doing so. It is here we agree with the contention of the learned Senior Counsel for the appellant, in the circumstances which are explained by him and recorded above. It is stated at the cost of repetition that when the entire exercise was revenue neutral, the appellant could not have achieved any purpose to evade the duty. 10. Therefore, it was not permissible for the respondent to invoke the proviso to Section 11A(1) of the Act and apply the extended period of limitation. In view thereof, we confirm the demand insofar as it pertains to show cause notice dated 25-2- 2000. However, as far as show cause notice dated 3-3-2001 is concerned, the demand from February, 1996 till February, 2000 would be beyond limitation and that p....
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....er 23.04, and attracted Nil rate of duty till the issuance of Notification No 3/2006 classifying the said goods under 21061000 and attracting the duty @ 8%. They relied on the certificate dated 13.09.2006, issued by the range superintendent stating as follows: "TO WHOM IT MAY CONCERN This is to certify that M/s Vansha Fragrances Pvt Ltd, 13th Mile, Tamulkuchi, Byrnihat, Fist Ri-Bhol, Meghalaya, who manufactures Soya Nugget (Soya Chunk) falling under Central Excise Tariff Heading 23.04 as per their declaration, is not a Registered Central Excise factory as the product attracts NIL rate of Central Excise Duty as per the tariff and as such is not required to obtain Central Excise Registration.' Commissioner has considered this certificate and has recorded his finding on the said certificate. It is interesting to note that Appellant 1 has approached the Range Superintendent vide his letter dated 23.08.2006, seeking clarification in respect of dutiability of their product, whereas it is their claim that their product become dutiable from 01.03.2006 when notification No 3/2006-CE dated 01.03.2006 was issued. It is their submission that they had voluntarily approached the department fo....
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.... or; (c) Indian Oil Corporation, Guwahati or; (d) Assam Oil Division, Indian Oil Corporation, Digboi, and cleared from a unit located in the Growth Centre or Integrated Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estates or Industrial Area or Commercial Estate or Scheme Area, as the case may be, specified in Annexure appended to this notification, from so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts as is equivalent to the amount of duty paid by the manufacturer of goods other than the amount of duty paid by utilization of CENVAT credit under the CENVAT Credit Rules, 2001. Provided that the exemption contained in this notification shall not be applicable to the goods falling under Chapter 24. Provided that the exemption contained in this notification shall not be applicable to the goods manufactured and cleared from: (a) Numaligarh Refineries Limited (NRL) or; (b) Bongaigaon Refinery and Petrochemicals Limited (BRPL) or; (c) Indian Oil Corporation, Guwahati or; (d) Assam Oil Division, Indian Oil Corporation, Digboi, 1A. In cases where all the goods produced ....
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....tral Board of Excise and Customs. Such amount credited in the account current may be utilised by the manufacture for payment of duty, in the manner specified under rule 8 of the Central Excise Rules, 2002, in subsequent months, and such payment should be deemed to be payment in cash; Provided that where the exemption contained in this notification is not applicable to some of the goods produced by a manufacturer, the amount of such credit shall not exceed the amount of duty paid less the amount of the CENVAT Credit availed of, in respect of the duty paid on the inputs used in or in relation to the manufacture of goods cleared under this notification.; (b) the credit of duty paid during the month under consideration, other than by way of utilisation of CENVAT credit under the CENVAT Credit Rules, 2002, may be taken by the manufacturer in his account current, by the seventh day of the month following the month under consideration; (c) a manufacturer who intends to avail the option under clause (a), shall exercise his option in writing for availing such option before effecting the first clearance in any financial year and such option shall be effective from the date of exercise of ....
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.... utilisation of the amount credited in the account current, shall be taken as payment of duty by way other than utilisation of CENVAT credit under the CENVAT Credit Rules, 2002.'. 3. The exemption contained in this notification shall apply only to the following kind of units namely :- (a) New industrial units which have commenced their commercial production on or after the 24th day of December, 1997. (b) Industrial units existing before the 24th day of December, 1997 but which have undertaken substantial expansion by way of increase in installed capacity by not less than twenty five per cent on or after the 24th day of December, 1997. 4. The exemption contained in this notification shall apply to any of the said units for a period not exceeding ten years from the date of publication of this notification in the Official Gazette or from the date of commencement of commercial production whichever is later." From the above referred notification it is quite clear that the said exemption notification is conditional exemption notification and also provides for the manner in which it is to be given effect to. The appellants have made the claim to the said notification, to argue that t....
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....a case resulting in Revenue neutral situation, therefore, the extended period of limitation is not applicable and the entire demand is barred by limitation. Our attention is also drawn to the decision of the Larger Bench, a copy of which is annexed to the paper book. In the operative portion of the judgment, the Larger Bench of the Tribunal has answered the reference in the following manner :- "(a) Revenue neutrality being a question of fact, the same is to be established in the facts of each case and not merely by showing the availability of an alternate scheme; (b) Where the Scheme opted for by the assessee is found to have been misused (in contradistinction to mere deviation or failure to observe all the conditions) the existence of an alternate scheme would not be an acceptable defence : (c) With particular reference to Modvat scheme (which has occasioned this reference) it has to be shown that the Revenue neutral situation comes about in relation to the credit available to the assessee himself and not by way of availability of credit to the buyer of the assessee's manufactured goods; (d) We express our opinion in favour of the view taken in the case of M/s. Internati....
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....this Tribunal held that belief can be said to be bona fide only when it is formed after all reasonable consideration are taken into account. It is not the case of the appellant that they sought legal advice in the matter or were so advised by any one. On the contrary, we find that there are a number of judicial pronouncements which prohibited diversion of goods from one project to another and, therefore, the plea of bona fide belief does not sustain." Further in case of Bhushan Steel & Strips Ltd [2014 (310) ELT 918 (T-Mumbai)] tribunal again stated as follows: "18.1 As regards the point that the appellant bonafidely believed that they were eligible for the benefit of the Cenvat credit, this contention is not tenable for the following reason. A belief can be said to be bona fide only when it is formed after all reasonable considerations are taken into account as held by this Tribunal in the case of Interscape v. Commissioner of Central Excise, Mumbai-I - 2006 (198) E.L.T. 275 (Tri.-Mum). In Winner Systems - 2005 (191) E.L.T. 1051 (Tri.-Mum), it was held that blind belief cannot be a substitute for bona fide belief. Applying the ratio of these decisions to the facts of the present....
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....nt that in view of the bona fide belief, extended time could not have been invoked falls flat." Without any evidence to show how the appellants claim bonafide belief in the matter to the effect the goods manufactured by them do not attract any excise duty, the argument made in this regard cannot be accepted. Thus in absence of any such bonafide belief, the appellants reliance on the decision of the Hon'ble Apex Court in case of Continental Foundation and Nirlon Ltd. is farfetched. 4.16 We have earlier observed that issue of classification was not even under challenge before the Hon'ble High Court and it could not have been in view of the express provision under Section 35 G & 35 L of the Central Excise Act, 1944 which provides as under: Section 35G. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a sub....