2011 (2) TMI 138 - HC - Central Excise

Demand of duty - Burden of proof - The goods received back were duty paid goods and also that the conditions laid down in the Trade Notice are fulfilled - The department has not produced any evidence to indicate that the processes undertaken by the appellants amounted to manufacture - The finding recorded by the Commissioner (Appeals) is that the goods were removed after the duty had already been paid - Removal of goods received back from Sales Depot for reconditioning did not require payment of duty again - Due procedure had been followed in the matter - Hence, there was no case for demand of duty.

Summary

Issues:
1. Interpretation of substantial questions of law under Section 35G of the Central Excise Act, 1944.
2. Allegation of escapement of duty by the assessee.
3. Compliance with Trade Notice No.03-CE/2002 dated 30.01.2002.
4. Burden of proof on the party seeking benefit under Rule 16(3) of the Central Excise Rules, 2002.
5. Assessment of duty payment on goods received back for reconditioning.

Analysis:

1. The appeal was filed by the revenue under Section 35G of the Central Excise Act, 1944, challenging the order of the Customs, Excise & Service Tax Appellate Tribunal. The substantial questions of law raised included whether the Tribunal was correct in setting aside the appeal of the Department due to the failure to mention specific conditions of Trade Notice No.03-CE/2002. Additionally, the burden of proof regarding duty paid goods and compliance with Trade Notice conditions was questioned.

2. The assessee, engaged in the manufacture of specific goods, was found to have cleared excisable goods without payment of duty during a certain period. A Show Cause Notice was issued, alleging escapement of duty. The Order-in-original confirmed the demand of duty with interest and penalty. However, the assessee contended that the goods received back were duty paid and that they had complied with the procedures outlined in Trade Notice No.03-CE/2002.

3. The Commissioner (Appeals) examined the case records and found that the goods in question were received back by the assessee for reconditioning under Rule 16(3) of the Central Excise Rules, 2002. The Commissioner noted that the goods were removed without payment of duty after reconditioning, and the necessary permission had been obtained as per the Trade Notice. Consequently, the Commissioner concluded that there was no basis for the demand of duty or imposition of penalty.

4. The Tribunal affirmed the Commissioner's findings, emphasizing that the duty had already been paid on the goods received back for reconditioning, and no further duty was required upon their removal. The Tribunal considered that the procedures had been correctly followed, leading to the dismissal of the appeal by the High Court.

5. Ultimately, the High Court upheld the decisions of the Commissioner (Appeals) and the Tribunal, stating that the findings regarding the duty payment and compliance with procedures were factual and not shown to be erroneous. Consequently, no substantial question of law arose, leading to the dismissal of the appeal by the revenue.