2010 (2) TMI 654 - AT - Central Excise

Demand Notice - Show Cause Notice was given, fixing a personal hearing on 21-7-2008 but the same was received by the appellants on 12-9-2008. It is also submitted that without giving a personal hearing the Demand Notice was issued on 21-8-2008 - Held that the Demand Notice under Rule 8 is issued without hearing the appellants, therefore, the Demand Notice de hors the Rule. Textile committee cess - Liability - The appellants admit the liability to pay the cess in the event the cess is not paid by the supplier - The appellants rely heavily on the Circular and claim exemption of paying the cess by submitting the proof of payment of the cess by the supplier - Once the burden of payment is satisfactorily discharged, the appellants can absolve itself from the liability of paying the cess - Hence the appellants are not liable to pay any cess.

Summary

Issues:
Challenge to Demand Notice for cess payment based on supplier's payment, interpretation of Circular dated 14-11-1984, applicability of judgments in similar cases.

Analysis:
1. The appellants challenged the Demand Notice for cess payment, arguing that as processing units, they are not required to pay cess if the supplier has already paid. The Circular dated 14-11-1984 was cited to support this claim, stating that cess need not be paid if already paid by the supplier. The appellants contended that the Demand Notice was issued without a personal hearing, rendering it unsustainable under law.

2. The Respondent countered, citing the judgment in the case of M/s. Ujagar Prints & Ors. v. Union of India & Ors., which expanded the term "manufacture" to include processing activities like dyeing and finishing within the ambit of manufacture. The Respondent argued that processing units are liable to pay cess as per this judgment, despite the supplier's payment. A previous Tribunal order and a letter dated 15-11-2000 were presented to challenge the validity of the Circular dated 14-11-1984.

3. The Tribunal considered the arguments and evidence presented. It noted that a Show Cause Notice was issued but a personal hearing was not granted before the Demand Notice. The Circular of 1984 was found to be valid and binding, supported by the documents proving supplier's cess payment. The Tribunal referenced a previous case with a similar issue and followed its decision, ultimately ruling in favor of the appellants.

4. The judgment highlighted that the appellants admitted liability if the supplier did not pay the cess, but claimed exemption based on the Circular and proof of supplier's payment. Once the burden of payment was shown to be discharged by the supplier, the appellants were deemed not liable to pay any cess. Consequently, the Demand Notice was quashed, and the appeal was allowed.

5. In conclusion, the Tribunal upheld the appellants' argument regarding the supplier's payment of cess, the validity of the Circular, and the absence of liability on the appellants. The judgment emphasized adherence to legal principles and precedents in determining the appellants' obligation to pay cess, resulting in the dismissal of the Demand Notice.