2015 (2) TMI 1216 - AT - Central Excise

Clandestine removal - demand of duty, interest and penalty - demand on the ground that the appellant has received the goods without duty paying invoice - Held that - As per the provision of Central Excise Act, duty is payable by the manufacturer/producer of the goods - Admittedly appellant is not the manufacturer/producer of the goods. Therefore, demand is not sustainable against the appellant. The SCN has been issued after a period of five years that also on limitation and appellant is having a good case - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Demand of duty, interest, and penalty against the appellant.
2. Allegation of receiving goods without cover of invoices.
3. Validity of show cause notice issued after a period of five years.

Analysis:
The appellant appealed against an order demanding duty, interest, and penalty related to the receipt of goods without proper invoices. The investigation revealed that the manufacturer of the goods had cleared them without paying duty, and the appellant admitted to receiving the goods without invoicing. The appellant argued that since they were not the manufacturer, duty should not be demanded from them. Additionally, they contended that the show cause notice issued after five years was not sustainable. The appellant's counsel emphasized the lack of liability on the appellant's part due to not being the manufacturer and the delay in issuing the notice.

During the proceedings, the appellant's counsel highlighted the admission by the manufacturer regarding the clearance of goods without duty payment and the appellant's receipt of goods without proper invoices. The Central Excise Act mandates duty payment by the manufacturer or producer of goods, not the appellant in this case. The Tribunal noted that the appellant was not the manufacturer and, therefore, was not liable for the duty. Moreover, the issuance of the show cause notice after the lapse of five years was deemed a limitation issue favoring the appellant.

In the judgment, the Tribunal ruled in favor of the appellant, setting aside the impugned order. The Tribunal found the demand against the appellant unsustainable due to the appellant not being the manufacturer of the goods. Additionally, the delay in issuing the show cause notice beyond the prescribed period of five years further supported the appellant's case. Consequently, the appeal was allowed, providing the appellant with consequential relief, if applicable.