TaxTMI 
TaxTMI 
TaxTMI 
2023 (5) TMI 931
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....4 and direct them to pay the same along with interest as per Section 11AB of the Central Excise Act, 1944. I impose a mandatory penalty of rupees 13,36,872 (Thirteen Lakhs Thirty Six Thousand Eight Hundred Seventy Two only) under Section 11AC of Central Excise and Salt Act 1944 read with Rule 25 of the Central Excise rules 2000." 2.1 Appellant is registered for manufacture of fiber glass fabric classifiable under CETH 70195900. During the course of audit of the records of the appellant, it appeared that the appellant is availing the benefit of Notification No. 8/2003-CE dated 01.03.2003 and also they are undertaking the job work on the goods by other manufacturers/traders which is cleared without payment of duty. 2.2 Revenue was of the view that the job work undertaken by the appellant did not satisfy the provisions contained in Notification No. 214/86-CE dated 25.03.1986 as amended by Notification No. 83/94-CE dated 11.04.1994 as neither the appellant nor the supplier of raw material has followed the conditions laid down in the said notification. Therefore no exemption could be allowed under these notifications. 2.3 Accordingly investigations were initiated and on completio....
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....d and recovered from them under Section 11AB of the Central Excise Act, 1944, and; (iii) Penalty should not be imposed upon them under Section 11AC of Central Excise Act, 1944." 2.5 The show cause notice was adjudicated as per the orderin- original referred in para 1 above and upheld by the impugned order of the Commissioner (Appeals). Aggrieved appellant has filed this appeal. 3.1 We have heard Shri Pankaj Pai, Consultant for the appellant and Shri Sunil Kumar Katiyar, Assistant Commissioner, Authorised Representative for the Revenue. 3.2 Arguing for the appellant, learned counsel submits that:- In terms of Notification No.83/94CE and No.84/94-CE both dated 11.04.1994 it is the supplier of the raw material who has to give necessary undertaking to the jurisdictional officer and not the job worker. Thus, onus to file declaration was not on the appellant. The show cause notice states that no evidence submitted to establish that goods job worked supplied were further worked by principal and cleared on central excise duty. In para 10 of the said show cause notice it is clearly indicated that the supplier of raw materials viz. (1) M/s Indian Tape Manufacturing Co., (ii) M/s S.V....
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....83/94 or 84/94 provided the supplier of the inputs gives an undertaking. Non following this mandatory condition would make the process of job work not entitled for benefit of the notification. This procedure has been devised in order to safe guard the revenue involved. Holding this procedure as non mandatory would create chaos, anarchy and no body would be accountable for any loss of revenue. 8. Hon'ble Apex Court in the case of Eagle Flask Industries Ltd 2004 (171) E.L.T. 296 (S.C.) held that "Exemption from licensing under Notification No. 11/88-C.E. (N.T.) subject to filing of declaration and giving of an undertaking as specified in the Form annexed with the said notification Filing of declaration not an empty formality or mere procedural requirement - Conditions of exemption notification to be fulfilled for claiming its benefit - Exemption not available as declaration not filed'. Exemption notification Conditions thereto to be strictly complied with for availing its benefit Condition of filling declaration/undertaking under exemption notification not merely procedural, hence exemption to be denied for non-observance of said conditions Section 5A of the Central Excise....
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....ob work. Hence, they are not required to intimate these details to the Department. Here I observe that it is obligatory on the part of the appellants to inform the details of inputs received and goods removed without payment of duty in the erstwhile RT 12 returns and also in the present ER 1 returns. The appellants have not put forth before me any evidence showing that they have intimated these details in the monthly returns. Hence, the appellants contention does not hold good and consequently, provisions of Section 11AC are invokable. 14. The appellants have relied upon case law M/s Sriman Plastics Pvt. Ltd. (2009 (245) E.L.T. 542 (Tri. - Bang.) wherein it was held that "Demand and penalty - Limitation - Extended period - Show cause notice for the period 1-6-1998 to 31-8-1999 issued on 2-8-2003- Supplier did not follow procedure prescribed under Notification No. 83/94-C.E. On this ground it cannot be concluded that appellants made clearances with wilful suppression and intent to evade payment of duty, appellant being only job worker returning job work finished goods to supplier - No justification for invoking extended period - Proviso to Section 11A and Section 11AC of Central ....
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....Rule 4(5)(a) is on the supplier of the goods and not on the processor of the goods. In this view of the matter, we find that the impugned order is not sustainable in law and merits to be set aside. Accordingly we allow the appeal." 4.4 In the case of Inar Profiles Pvt. Ltd. [2014 (310) ELT 200 (Tri.-Bang.)] following has been held:- "3. The learned counsel relied upon the decisions of the Tribunal in the case of Salem Weld Mesh - 2007 (218) E.L.T. 405 (Tri.-Chennai) and in the case of Bharat Foundry - 2009 (246) E.L.T. 561 (Tri.-Ahmd.). In the case of Bharat Foundry, it was held that once the goods have been supplied under challan and properly accounted for by both the principal manufacturer and the job worker, the benefit of Notification No. 83/94 CE cannot be denied on the ground that there was no undertaking given by the principal manufacturer. In the case of Salem Weld Mesh also, a similar view was taken. It has to be noted that in the case of Bharat Foundry the author of the order was one of the Members of this Bench. We find both these decisions are applicable to the facts of this case as far as supplies to principal manufacturers who were availing the benefit of SSI exem....
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.... facts of this case, we are unable to hold that the decision relied upon by the learned AR is applicable to the facts of this case. 6. The discussion above would show that the appellant is eligible for the benefit of Notification in respect of their supplies made to the SSI units. As regards contractors and traders, etc., the learned counsel drew our attention to the table submitted by them in reply to the show-cause notice wherein they had shown that if the clearances to third category of traders alone is taken in all the years under consideration by us, the total clearances made by the assessee would be less than the limit for total exemption prescribed by the SSI exemption Notification." 4.5 In the case of Bharat Foundry [2009 (246) ELT 561 (Tri.- Ahmd.)] following has been held:- "4. We have considered the submissions made by both the sides. In respect of spare parts cleared by the principal manufacturer under SSI Notification No. 83/94 dated 11-4-1994, the exemption is subject to the condition that the supplier of raw material files an undertaking of the proper officer having jurisdiction over the factory of the job worker. There is no dispute about the eligibility of t....
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....ribunal) = 2000 (39) RLT 1091 wherein it was held that when processed fabrics received by job worker for heat setting and stentering under Rule 57F(4) and returned after processing, the job worker cannot be held liable to duty. The appeal filed by the Department against the above decision has been dismissed by the Hon'ble Supreme Court on 3-10-2002. Further, the Hon'ble Supreme Court in the case of Prestige Engineering (India) Ltd. v. CCE, Meerut reported in 1994 (73) E.L.T. 497 has held "that job work means goods produced out of raw materials supplied by customer and where the job workers contribute mainly their labour and skill though done with the help of their own tools, gadgets or machinery. It was also held therein that when job worker contributes his own raw material to the article supplied by the customers and manufacturers different goods, it does not amount to job work, however addition or application of minor items by job worker would not detract it being a job worker....". Further in the case of Addisons & Co. v. CCE, reported in 1990 (48) E.L.T. 281 it was held that the term "process incidental or ancillary to the manufacture of a product as envisaged under Section 2(f....
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....r further processing for heating on a matrix holder. (viii) After the heating is over at the hands of the job worker, the next process is sanding i.e., the bottom side of the tread rubber is roughened to get the buffed surface of the tyre. After this process is over, at the hands of the job worker, the tread rubber strips are returned to the raw material supplier under Rule 57F(2)/(57F(3). (ix) During the process of manufacture of tread rubber on the matrix, excess rubber flows out of the mould and as a result both the sides of the strip would have excess flattened rubber ends called flash. The top portion of the tread would have excess rubber in the form of air vents sticking out. This is to be deflashed by cutting and trimming and this is done by the raw material supplier. (x) After the de-flashing is over at the hands of the raw material suppliers, the vulcanized strips are subjected to testing for hardness and also for thickness with verniers to ensure uniformity and this is done by the raw material suppliers. It is after this process, the strips are inspected for final despatch to the customers by the primary manufacturers (raw material suppliers)." 6. From the abo....