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2010 (12) TMI 238 - AT - Central ExciseNCCD - whether during the period from 1/3/01 to 16/10/02, NCCD was chargeable on the Additive mixture manufactured and captively consumed by the respondent in manufacture of Chewing Tobacco - with the introduction of NCCD, the exemption from NCCD in respect of goods cleared for captive consumption was not provided by issue of an exemption Notification under Section 5A - Such an exemption Notification No. 52/02-CE was issued only on 17/10/02 without any retrospective effect - However, since in this case, there was no intention to evade the NCCD, penalty under Rule 25 (1) is not warranted Accordingly the appeal is dismissed. The issue of revenue neutrality was decided by the Larger Bench of the Tribunal in the context of question as to whether or not there was intention on the part of the assessee to evade the payment of duty and the question before the Tribunal was not as to whether in a revenue neutral situation, the duty was required to be paid or not. In the case of Jay Yuhshin Ltd. vs. CCE,New Delhi(2000 -TMI - 48829 - CEGAT, NEW DELHI), it is not the decision of the Tribunal that in a revenue neutral situation the assessee is not required to pay the duty.
Issues Involved:
1. Liability of National Calamity Contingent Duty (NCCD) on Additive Mixture used in the manufacture of branded Chewing Tobacco during the period from 01/03/2001 to 16/10/2002. 2. Applicability of revenue neutrality in the context of NCCD. 3. Imposition of penalty under Rule 25(1) of Central Excise Rules, 2002. Issue-wise Detailed Analysis: 1. Liability of NCCD on Additive Mixture: The respondents manufacture branded Chewing Tobacco and an intermediate product, Additive Mixture, which is used captively. The dispute revolves around whether NCCD was chargeable on the Additive Mixture during the period from 01/03/2001 to 16/10/2002. The Additive Mixture is classified under sub-heading 2404.41 of the tariff, which covers "Chewing Tobacco and preparations containing Chewing Tobacco." According to the Hon'ble Supreme Court in cases like Dharampal Satyapal vs. CCE and Gopal Zarda Udyog vs. CCE, the Additive Mixture is an excisable product. NCCD, introduced by Section 136 of the Finance Act, 2001, became chargeable from 01/03/2001. The exemption Notification No. 67/95-CE exempted the Additive Mixture from basic excise duty and AED (GSI) but not from NCCD. The specific exemption for NCCD was provided only by Notification No. 52/02-CE dated 17/10/2002. Thus, during the disputed period, NCCD was chargeable on the Additive Mixture, even if it was cleared for captive consumption. 2. Applicability of Revenue Neutrality: The Commissioner (Appeals) set aside the NCCD demand on the ground of revenue neutrality, citing that the NCCD paid on the Additive Mixture would be available as Cenvat credit for the finished product, Chewing Tobacco. The Tribunal's judgment in Jay Yuhshin Ltd. vs. CCE was referenced to support this view. However, the Tribunal clarified that the decision in Jay Yuhshin Ltd. addressed whether revenue neutrality could negate the intention to evade duty, not whether duty payment could be avoided in a revenue-neutral situation. The Supreme Court cases cited by the respondent, such as CCE, Jamshedpur vs. Jamshedpur Beverages and CCE, Pune vs. Coca-Cola India Pvt. Ltd., dismissed the department's appeals on grounds of revenue neutrality but did not establish a general principle that duty need not be paid in such situations. The Tribunal concluded that revenue neutrality does not exempt the payment of duty, and the exemption Notification No. 52/02-CE could not be applied retrospectively. 3. Imposition of Penalty: The department did not contest the setting aside of penalties by the Commissioner (Appeals). The Tribunal agreed that since there was no intention to evade NCCD, penalties under Rule 25(1) were not warranted. The impugned order regarding penalties was upheld. Conclusion: The Tribunal held that the Commissioner (Appeals)'s order setting aside the NCCD demands on the ground of revenue neutrality was incorrect. The orders-in-original by the Adjudicating Authority were restored, confirming the NCCD demands. However, the decision to not impose penalties was upheld. The Revenue's appeals were disposed of accordingly.
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