2012 (10) TMI 583 - AT - Central Excise

Manufacture - area based exemption - Benefit of Notification No. 50/2003-C.E., dated 10-6-2003. demand of duty and penalty the benefit of said notification is being denied on the sole ground that the appellant in their declaration so filed has not given the information about the inputs being used by them - Held that - It has to be kept in mind that the notification in question is a general notification, which is the area based exemption notification and grants exemption to all the manufacturers/excisable units located in that particular area. When all other manufacturers located in that area were enjoying the benefit of said notification, the denial of benefit of the same to the appellant on the sole ground that a declaration was not filed, would not be justified. When the appellant is being treated as the service provider, he cannot be held to be a manufacturer liable to pay excise duty in which case and he cannot be expected to file a declaration. - waiver of pre deposit allowed.

Summary

Issues:
1. Whether the appellant should be exempted from the pre-deposit condition of duty, interest, and penalty confirmed against them.
2. Whether the activity of banding soap cakes into multi-packs amounts to manufacture under Central Excise provisions.
3. Whether the appellant is entitled to the area-based exemption under Notification No. 50/2003-C.E.
4. Whether the denial of exemption based on non-filing of a declaration is justified.
5. Whether the appellant, being treated as a service provider, should be liable to pay excise duty.

Analysis:

1. The appellant sought dispensation from the pre-deposit condition of duty, interest, and penalty amounting to Rs. 37,46,69,391/- confirmed against them. The appellant was engaged in banding soap cakes into multi-packs as a job worker for a manufacturer. The appellant argued that they were registered under the Service Tax department and paid taxes accordingly. The Tribunal considered the appellant's contention and dispensed with the pre-deposit condition, allowing the stay petition unconditionally.

2. The Revenue contended that banding soap cakes into multi-packs constituted manufacturing, making the appellant liable for Central Excise duty. The appellant argued that their activity did not amount to manufacturing as they were not involved in retail packing from bulk packs. The Tribunal noted the arguments from both sides but did not provide a specific ruling on whether the banding activity constituted manufacturing under Central Excise provisions.

3. The appellant claimed entitlement to area-based exemption under Notification No. 50/2003-C.E. The lower authorities denied this benefit based on incomplete declaration filing by the appellant. The Tribunal observed that denial of exemption solely due to non-filing of a declaration, especially when other manufacturers in the area enjoyed the exemption, was not justified. The Tribunal emphasized the purpose of the notification and the appellant's bona fide belief in their tax obligations.

4. The denial of exemption due to incomplete declaration filing was challenged by the appellant. The Tribunal highlighted that the appellant, being treated as a service provider, had valid reasons for not filing the declaration. The Tribunal referenced a Supreme Court decision to support the appellant's position that denial of exemption solely based on declaration non-filing would be unjust, especially considering the appellant's location in an area with area-based exemption.

5. The appellant's status as a service provider was a crucial aspect of the case. The Tribunal noted that the Revenue initially treated the appellant as a service provider, charging service tax accordingly. Subsequently, holding the appellant liable for excise duty raised questions about the appellant's tax obligations. The Tribunal found it unfair to demand excise duty from the appellant, given their location in an area with widespread exemption and their service provider status. The Tribunal, therefore, ruled in favor of the appellant, dispensing with the pre-deposit condition and granting an unconditional stay on recovery during the appeal's pendency.