2010 (11) TMI 911 - AT - Central Excise

SSI exemption - N/N. 8/2002-C.E. during 2002-03 and under N/N. 8/2003-C.E., dated 1-3-2003 - clubbing of clearances - whether the price charged from the customers is to be treated as cum-duty price and duty liability must be recomputed by determining the assessable value after abating the duty from the sale price? - Held that - the price charged by an assessee from his buyer including the money value of the additional consideration, if any, flowing from the buyer of the assessee, is deemed to be including the excise duty payable on such goods, since the period of dispute in this case is 2004-05, i.e. after 13-5-2003 the explanation added to Section 4(1) with effect from 14-5-2003 has to be taken into account and accordingly the price realised by the assessee has to be treated as including excise duty and the assessable value has to be determined after abating the element of duty from the sale price. The Commissioner (Appeals), while deciding this point against the Appellant, has not considered the provisions of Explanation to Section 4(1) and hence the part of the impugned order disallowing the abatement of Central Excise duty from the price charged is not correct and the matter has to be remanded to the adjudicating authority for re-computing the duty demand by treating the price charged by the Appellant as cum-duty price and determining assessable value after abating the Central Excise duty - matter on remand. Whether Penalty u/r 25(1) of CER, 2002 is imposable on the Appellant? - Held that - From the language of clause (a) (b) and (c) of Rule 25(1), it will be seen that for imposition of penalty for contraventions mentioned in these clauses, intention to evade the payment of duty is not required and mere contravention of the provisions of the Central Excise Rules or of the notification issued under the rule is sufficient for attracting penalty - Since in this case, the goods were cleared by the Appellant during April 2004-Jan. 2005 paid without discharging duty liability and thereby contravening the provisions of Rules 4, 6 & 8 of the CER, and this contravention has not been disputed, penalty under Rule 25(1)(a) would be attracted - penalty upheld. Appeal disposed off - part matter on remand and part matter decided against assessee.

Summary

Issues Involved:
1. Eligibility for SSI exemption under Notification No. 8/2003-C.E. during 2004-05.
2. Imposition of penalty under Rule 25(1) of the Central Excise Rules, 2002.
3. Denial of cum-duty benefit in terms of Hon'ble Supreme Court's judgment in the case of Shree Chakra Tyres Ltd.

Detailed Analysis:

1. Eligibility for SSI Exemption:
The Appellant had two factories, one in Noida and another in Lucknow. The aggregate value of clearances from both factories exceeded Rs. 3 crores during 2003-04, making them ineligible for SSI exemption under Notification No. 8/2003-C.E. during 2004-05. The Appellant did not dispute this finding and had availed of the exemption during this period, resulting in a demand for Central Excise duty amounting to Rs. 2,99,442/- along with interest under Section 11AB and imposition of a penalty under Rule 25 of the Central Excise Rules, 2002.

2. Imposition of Penalty:
The penalty was imposed under Rule 25(1) of the Central Excise Rules, 2002. The relevant provisions of Rule 25(1) and Section 11AC were examined. The Tribunal noted that for contraventions under clauses (a), (b), and (c) of Rule 25(1), mens rea (intention to evade duty) is not required. Mere contravention of the provisions is sufficient to attract penalty. The Appellant had cleared goods without discharging full duty liability, thereby contravening Rules 4, 6, and 8 of the Central Excise Rules. Consequently, the imposition of penalty was upheld.

3. Denial of Cum-Duty Benefit:
The Appellant challenged the denial of cum-duty benefit, arguing that the price charged from customers should be treated as cum-duty price. The Tribunal referred to the explanation added to Section 4(1) of the Central Excise Act with effect from 14-5-2003, which states that the price charged by an assessee is deemed to include the excise duty payable on such goods. The Commissioner (Appeals) did not consider this explanation, leading to an incorrect decision. The Tribunal set aside this part of the impugned order and remanded the matter to the adjudicating authority for re-computing the duty demand by treating the price charged as cum-duty price and determining the assessable value after abating the Central Excise duty.

Conclusion:
The Tribunal upheld the penalty imposed on the Appellant but set aside the denial of cum-duty benefit. The matter was remanded to the original adjudicating authority for re-quantifying the duty liability by treating the price realised from customers as cum-duty price and re-determining the assessable value after removing the element of duty from such cum-duty price. The appeal was disposed of accordingly.