2010 (12) TMI 332 - AT - Central Excise

Waiver of pre-deposit - The appellants are a 100% EOU engaged in the production and export of tractors and tractor parts - A part of its finished goods, tractor parts, are cleared in bulk to assessee s own DTA unit, where they are packed and then cleared in retail packages on payment of duty determined in accordance with Section 4A - After due process of law the Commissioner found that the assessee had availed inadmissible exemption in terms of Notification No. 23/2003-C.E., dated 1-3-2003 in respect of clearances of tractor parts - The impugned clearances being of bulk goods and not required to be affixed with MRP were not subject to MRP based assessment - The assessee had paid on invoice value of the impugned clearances, the customs duty, the CVD worked out on the basis of MRP and had not paid the SAD - The impugned demand if paid would be available to the appellant instantly as CENVAT credit since the clearances were made to assessee s own DTA unit - Therefore, the demand of duty is, prima facie, not sustainable - Hence, waiver of pre-deposit of the dues adjudged against the appellant and stay recovery

Summary

Issues:
1. Admissibility of exemption under Notification No. 23/2003-C.E.
2. Liability to pay Special Additional Duty (SAD) on import of goods.
3. Revenue neutrality in payment of duty.
4. Challenge against demand confirmed by the Commissioner.
5. Pre-deposit of dues adjudged against the appellant.

Analysis:

Admissibility of exemption under Notification No. 23/2003-C.E.:
The appellants, engaged in the production and export of tractors and tractor parts, were found to have availed an inadmissible exemption under Notification No. 23/2003-C.E. for clearances made during a specific period. The Commissioner confirmed a demand for a total differential duty against the appellants due to this inadmissible exemption. The appellants challenged this denial of exemption, arguing that the show-cause notice did not contain the necessary proposals to deny the benefit. The Tribunal noted that the impugned clearances were not liable to Special Additional Duty (SAD) as they were not exempt from SAD under the notification.

Liability to pay Special Additional Duty (SAD) on import of goods:
The Tribunal found that the impugned clearances, being bulk goods not required to be affixed with Maximum Retail Price (MRP), were not subject to MRP-based assessment. The appellants were required to discharge duty liability on these clearances by paying an amount equal to the aggregate customs duty payable on the import of similar goods. The appellants had paid the customs duty and the CVD based on MRP but had not paid the SAD, which was payable due to the absence of sales tax on these clearances.

Revenue neutrality in payment of duty:
The appellants claimed that the payment of duty was revenue neutral and, therefore, the demand was not sustainable. They argued that the demand should be challenged on the grounds of revenue neutrality. However, the Commissioner rejected this plea, citing a specific judgment related to the defense of bona fides in excise duty matters.

Challenge against demand confirmed by the Commissioner:
The Tribunal observed that the Commissioner did not effectively address the challenge raised against the demand proposed in the show-cause notice and later confirmed on the plea of revenue neutrality. It referenced several apex court cases where appeals by the Revenue were dismissed due to the revenue-neutral nature of the cases.

Pre-deposit of dues adjudged against the appellant:
Considering the judgments of the apex court in similar cases where the outcome would lead to a revenue-neutral situation, the Tribunal found that the demand of duty in the present case was prima facie not sustainable. Consequently, the Tribunal ordered the waiver of pre-deposit of the dues adjudged against the appellant and stayed the recovery pending the decision in the appeal.