TaxTMI 
TaxTMI 
2023 (9) TMI 57
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....only in December 2007. 3. On the basis of the investigation carried out at the premises of M/s. Bidisha Enterprise, the Appellant was issued a show cause notice dated 25.03.2011, demanding central excise duty Rs.64,50,631/-on the goods, namely 'parts of motor vehicles', manufactured and cleared to M/s. Bidisha Enterprise during the period 2006-07 and April 2007 to November 2007 by invoking extended period of limitation. The duty was demanded from the Appellant on the ground that since M/s. Bidisha Enterprise was not registered with Central Excise department, it was the duty of the Appellant to pay excise duty on the goods manufactured and cleared by them. The show cause notice was adjudicated by the Ld. Commissioner of Central Excise, Kolkata III Commissionerate, vide OIO dated 28.03.2012 and the demand of duty proposed in the Notice was confirmed along with interest. A penalty of Rs 20,00,000/- was also imposed on Shri. Biswajit Saha (Appellant), Proprietor of M/s.Bidisha Enterprise, under Rule 26(1) of the Central Excise Rules,2002. Aggrieved against the impugned order, the Appellants filed the present appeals. 4. In their grounds of appeal, the Appellant M/s Jamuna Enterprise ....
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.... immediately on receipt of MS ingots and billets from the job worker. There is no restriction on the manufacturer to send raw material directly from the place of import to the job work premises. Therefore, we hold that there is no dispute on the receipt of scrap and clearance of MS ingots/billets to the principal supplier, the question of demanding duty on the job work does not arise. In view of the foregoing discussions, we are of the considered view that demand of excise duty on the job worker i.e. appellant is not sustainable both on limitation and on merits." 4.5 The Appellant also relied on the decision of the CESTAT, Chennai in the case of MOON CHEMICALS Versus COMMISSIONER OF C. EX., THIRUVANANTHAPURAM 2007 (215) E.L.T. 434 (Tri. - Chennai), wherein it was held by the CESTAT as under :- "3. After giving careful consideration to the submissions, we find that the lower appellate authority sustained the demand of duty on the ground that the condition laid down in para (2) of Notification No. 214/86 was not complied with by the appellants. The goods specified under the Notification were exempted from payment of duty of excise, where such goods were manufactured in a factory ....
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....G PVT. LTD. Versus COMMISSIONER OF C. EX., MUMBAI-III 2014 (307) E.L.T. 528 (Tri. - Mumbai) wherein it was held as under:- "5. We have carefully considered the submissions made by both the sides. As held by us in appellant's own case and also in Trico Process Pvt. Ltd. and Akash Fashion Prints (P) Ltd. cases (supra), the liability to pay duty in respect of goods moved under Rule 4(5)(a) is on the supplier of the goods and not on the job-worker. Therefore, notwithstanding the fact that the process fabrics are not included in Notification 214/86, the job-worker is not liable to discharge excise duty liability and any liability thereon is required to be discharged by the supplier of the raw materials. Rule 4(6) of the Cenvat Credit Rules makes it abundantly clear that, if the goods are required to be cleared from the job-worker's premises instead of being returned to the supplier, then the Commissioner can direct clearance of the goods on payment of duty from job-worker's premises. This would also indicate that the liability to discharge duty under the provisions of 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 fin....
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....ppression has been dealt with at length in the case of Lakshmi Engg. Works Vs. CCE reported in 1989 (44) ELT 353 by the Apex Court as reported in 1991 (55) ELT A33 wherein it has been held that the concept of suppression amounts to that which one is legally to state but one intentionally or deliberately or consciously does not state. In other words, the term 'suppression' includes a mental element to deliberately omit to state certain things. Therefore, it was held that the extended period of limitation is inapplicable in absence of suppression of facts and hence, absence of an intent to evade payment of duty. The same principle was also upheld by Supreme Court in the case of Pushpam Pharmaceuticals Company vs. CCE reported in 1995 (75) ELT 721 S.C., wherein the Apex Court held: "It is not correct to say that there can be a suppression or mis-statement of fact, which is not wilful. Misstatement or suppression of fact must be willful ........................so far as misstatement or suppression of facts are concerned, they are clearly qualified by the word "willful" preceding the words "misstatement or suppression of facts" which means with intent to evade duty". It is therefore, ....
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.... are the manufacturers as per Section 2(f) of the Central Excise Act, 1944. 8. It is a fact on record that M/s Bidisha Enterprise has not registered with Central Excise department till December 2007. The present issue pertains to the period prior to December 2007, when they have not taken registration and got their goods manufactured through the 'job worker'. Notification 214/86-CE dated 25.03.1986, provides a mechanism for supplier of raw materials to get their goods manufactured on job work basis without payment of duty. The said exemption is applicable only to goods in respect of which the supplier of the raw material or semi-finished goods had given an undertaking that the said goods would inter alia, be used in or in relation to the manufacture of final products in his factory. In other words, job worker is not liable to pay duty when the supplier of raw material undertakes themselves to discharge duty on the said goods after receiving it from the job worker. For that, the procedure set out in Notification 214/86-CE dated 25.03.86 has to be followed. In the present case, the supplier of raw material was not registered with the department during the relevant period and n....
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....ed upon the following decisions: (i) OPG Metals Pvt. Ltd. Vs Commissioner of Central Excise, Trichirapally, reported in 2016 (343) ELT 230 (tri-Chennai) (ii) Moon Chemicals Vs Commissioner of Central Excise, Thiruvanathapuram, 2007 (215) ELT 434 (Tri-Chennai) (iii) Vandana Dyeing Pvt. Ltd. Vs Commissioner of Central Excise, Mumbai-II 2014 (307) ELT 528 (tri-Mumbai) 15. We have gone through the decisions cited by the Appellants listed above. On perusal, we observe that the facts and circumstances in the decisions cited above are distinguishable from the present case and hence they are not applicable for the present case on hand. In the case OPG Metals Pvt Ltd. and Moon Chemicals, the suppliers of raw materials were registered with Central Excise department and they were following Notification 214/86 and Rule 4(5)(a) of the Central Excise Rules, 2002 to send the raw materials to the job worker. Hence, it was held that the liability of duty , if any, would arise only on the raw material supplier, when the conditions of Notification 214/86 are followed. However, in the present case on hand the supplier of raw material M/s Bidisha Enterprise was not registered with the department....
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....d facts are that the respondents supplied raw materials for rolling incense sticks etc. to outside manufacturers and paid wages to them on the basis of number of pieces manufactured. Such manufacture was without the aid of power. There was no supervision over the manufacture. Incense sticks were put in packets and such packets were sold from the premises of the house-hold ladies and they did not go to the factory premises of the assessee. No doubt the sale proceeds went to the respondents but that will not change the character of manufacture. If the conclusion is that the house-hold ladies were the real manufacturers then the decision of the Tribunal cannot be faulted. In the case before us, although the said goods were manufactured by M/s. Raigad at the premises hired by the appellant from BPT that the machineries of M/s. Raigad under the supervision of supervisors appointed by the appellant. On the basis of above discussion, it cannot be held that the appellants are the manufacturers. Only M/s. Raigad are the manufacturers. Therefore, on this ground alone the appellants succeed. 17. We observe that the facts and circumstances of the present case are similar to the case cited abo....
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....ds to them for job work. Extended period of limitation under section 11A(1) of the Act can be invoked only if suppression, wilful misstatement occurs due to deliberate evasion of duty on part of the assessee. It is clear that such act must be deliberate. In taxation, it can have only one meaning that the correct information was not disclosed deliberately to avoid payment of duty. 20. We find merit in the argument of the Appellant. The Appellant has been providing job work and collecting job charges. As stated above, there were contrary decision available during the material period whether the job worker is the actual manufacturer or the suppliers of the raw material are the manufacturers. The Appellant has not considered themselves as the manufacturers and accordingly not charged any central excise duty from whom they sent the goods after conversion. There is no dispute on this. It is not a case where the Appellant has collected central excise duty from the customers and not paid the same to the government. They were under the bonafide belief that the processes undertaken by them did not amount to manufacture and accordingly cleared the goods to the raw material supplier on collec....