2010 (10) TMI 463 - AT - Central Excise

SSI exemption - Brand name of another - the Revenue authorities that the appellants had not considered the value of the exempt goods i.e. Paragon brand hawai chappals for computing the aggregate value of clearances for the purpose of availment of benefit of SSI exemption under Notification No. 8/2003-C.E., as amended - Held that as per clause (b) of para 3A that the value of the clearances shall not be taken into consideration which are ineligible for the benefit of exemption under para 4, would indicate that all other values of the clearances of the goods having brand name of other persons would be includable for determination of aggregate value of excisable goods for home consumption. If that be so, the impugned order which holds this view cannot be faulted and seems to be in accordance and in consonance with the law. As regards the claim of the assessee that the value needs to be re-quantified by considering the cum-duty value and also eligibility to Cenvat Credit on the goods on which the demand of differential duty raised and also on the question whether the rubber waste is an excisable product or not - Held that these things needs to be re-considered by the Adjudicating Authority - Hence, remand the matter back to the Adjudicating Authority to re-consider the issue.

Summary

Issues Involved:
1. Inclusion of the value of exempt goods for computing the aggregate value of clearances for SSI exemption.
2. Application of extended period for demand of differential duty.
3. Imposition of penalties under Section 11AC of the Central Excise Act, 1944.
4. Determination of whether rubber waste is an excisable product.
5. Re-quantification of duty considering cum-duty value and eligibility for Cenvat Credit.

Issue-Wise Detailed Analysis:

1. Inclusion of the Value of Exempt Goods for Computing the Aggregate Value of Clearances for SSI Exemption:
The appellants, manufacturers of Hawai Chappals under the brand name "Paragon," did not include the value of these exempt goods in computing the aggregate value of clearances for SSI exemption under Notification No. 8/2003-C.E. The Revenue authorities contended that the value of "Paragon" brand Hawai chappals should be included. The Tribunal noted that the notification's para 3A excludes certain clearances from the aggregate value, including those bearing another person's brand name, which are ineligible for exemption under para 4. Since "Paragon" does not fall under para 4's exceptions, its value should be included. The Tribunal upheld the Commissioner (Appeals)'s view that the value of such clearances must be considered for determining the aggregate value of excisable goods for home consumption.

2. Application of Extended Period for Demand of Differential Duty:
The show cause notice invoked the extended period for demanding differential duty. The Commissioner (Appeals) set aside the demand raised by invoking the extended period, which the Tribunal upheld, noting no appeal was filed against this finding. Thus, the demand for the extended period was correctly set aside.

3. Imposition of Penalties under Section 11AC of the Central Excise Act, 1944:
The appellant argued that there was no suppression of facts, and hence, the penalty under Section 11AC should be set aside. The Tribunal noted that the first appellate authority did not address the penalty issue despite acknowledging no suppression of facts. The Tribunal agreed that the penalties should be reconsidered in light of the finding on the extended period.

4. Determination of Whether Rubber Waste is an Excisable Product:
The appellants claimed that rubber waste generated during manufacturing was not excisable. The Adjudicating Authority did not provide findings on this, and the Commissioner (Appeals) remanded the matter for reconsideration. The Tribunal agreed that this issue needs to be re-evaluated by the Adjudicating Authority.

5. Re-quantification of Duty Considering Cum-Duty Value and Eligibility for Cenvat Credit:
The appellants contended that the duty liability should be correctly computed, considering cum-duty benefit and eligibility for Cenvat Credit. The Tribunal agreed with the Commissioner (Appeals) that these aspects require reconsideration by the Adjudicating Authority.

Conclusion:
The Tribunal upheld the Commissioner (Appeals)'s order on the merits of including the value of "Paragon" brand Hawai chappals in the aggregate value of clearances. The demand raised by invoking the extended period was correctly set aside. The Tribunal remanded the matter back to the Adjudicating Authority for reconsideration on the issues of penalty imposition, excisability of rubber waste, and re-quantification of duty, considering cum-duty value and eligibility for Cenvat Credit. The appeal was rejected on merits to the extent challenged by the assessee, and the matter was remanded for further consideration.