2010 (11) TMI 618 - AT - Central Excise

Demand - 100% EOU - Notification No. 8/97-C.E. - Since the fabrics procured from other 100% EOUs free of duty have been illicitly sold in DTA, there is no question of extending the benefit of duty exemption under Notification 125/84-C.E., as this exemption is applicable only to the goods manufactured in a 100% EOU which are not sold in DTA As regards the duty exemption under Notification No. 8/97-C.E., this exemption is available only in respect of the DTA clearances of the goods manufactured by a 100% EOU wholly out of indigenous raw material and the DTA clearances are in accordance with the proviso of the EXIM policy i.e. with the permission of the Development Commissioner - This exemption, obviously, will not be applicable to this case where the duty free goods procured from other 100% EOUs for export production have been illicitly diverted and sold in DTA - Appeals are dismissed

Issues Involved:
1. Recovery of Central Excise Duty and Interest
2. Imposition of Penalty on the Appellant Company
3. Imposition of Penalty on the Director
4. Evidence of Illicit Diversion of Duty-Free Fabrics
5. Validity of Test Reports and Statements
6. Applicability of Exemption Notifications
7. Calculation of Duty and Limitation Period

Detailed Analysis:

1. Recovery of Central Excise Duty and Interest:
The primary issue was the recovery of central excise duty amounting to Rs. 3,03,51,929/- along with interest under the proviso to Section 11A(1) of the Central Excise Act, read with Section 11AB and Rule 20(3) of Central Excise Rules 2002. The Appellant company was accused of illicitly diverting 743069.20 meters of polyester fabrics procured duty-free from other 100% EOUs to the domestic market. The Tribunal upheld the duty demand, confirming that the fabrics procured duty-free were not used for the intended export purposes but were diverted, thus justifying the recovery of duty and interest.

2. Imposition of Penalty on the Appellant Company:
A penalty equal to the duty amount (Rs. 3,03,51,929/-) was imposed on the Appellant company under Section 11AC of the Central Excise Act. The Tribunal found that the Appellant company had engaged in fraudulent activities by diverting duty-free fabrics to the domestic market and exporting garments made from inferior quality materials. This justified the imposition of the penalty under Section 11AC.

3. Imposition of Penalty on the Director:
A penalty of Rs. 50 lakhs was imposed on the Director under Rule 26 of the Central Excise Rules, 2002. The Tribunal upheld this penalty, noting that the Director was involved in the illicit diversion of duty-free fabrics and was aware that the exported garments were of inferior quality. The statements of the Director and other employees corroborated this finding.

4. Evidence of Illicit Diversion of Duty-Free Fabrics:
The evidence included test reports from the Textile Committee and CRCL, showing discrepancies in the composition and GSM of the fabrics used in the exported garments compared to the duty-free fabrics procured. Statements from the suppliers confirmed that they had supplied 100% polyester fabrics. The Tribunal found that the Appellant's explanations for these discrepancies were unsatisfactory and upheld the findings of illicit diversion.

5. Validity of Test Reports and Statements:
The Appellant contested the validity of the test reports and the voluntariness of the statements made by their employees and Director. However, the Tribunal found the test reports to be credible and the statements to be voluntary and admissible as evidence. The Tribunal noted that the discrepancies in the GSM and composition of the fabrics were significant and supported the allegations of illicit diversion.

6. Applicability of Exemption Notifications:
The Appellant argued that they were eligible for exemptions under Notification No. 125/84-C.E. and Notification No. 8/97-C.E. The Tribunal rejected these claims, stating that the exemptions were not applicable as the fabrics were illicitly diverted to the domestic market. The exemptions were intended for goods manufactured in a 100% EOU and not sold in the domestic market.

7. Calculation of Duty and Limitation Period:
The Appellant contended that the duty should be calculated under the main Section 3(1) of the Central Excise Act and that the price should be treated as cum duty price. The Tribunal rejected this argument, stating that the duty demand was correctly calculated under the proviso to Section 3(1) due to the illicit nature of the clearances. The Tribunal also upheld the use of the extended limitation period under the proviso to Section 11A(1), given the fraudulent activities involved.

Conclusion:
The Tribunal dismissed the appeals, upholding the recovery of duty and interest, and the imposition of penalties on both the Appellant company and its Director. The Tribunal found sufficient evidence of illicit diversion of duty-free fabrics and rejected the Appellant's claims for exemptions and alternative duty calculations.

← Previous Next →