2012 (11) TMI 821 - AT - Central Excise

Duty and penalty job worker - area based exemption - non filing of declaration - Notification No. 50/2003-C.E., dated 10-6-2003 read with Notification No. 76/2003-C.E. Held that - appellant having its factory in Himachal Pradesh which is covered by the notification should not be denied the benefit of notification on the said technical ground. - the appellant having a belief that the activity carried out by the appellant does not amount to manufacture, could not have filed a declaration for availing the benefit of said exemption notification. - the principal manufacturer i.e. M/s. Khaitan Electrical Ltd. located in that area is itself enjoying the benefit of notification in question, denial of the same to his job worker would not be in the interest of justice. Waiver of pre-deposit Held that - Appellants have pleaded financial hardship that their factory closed, the proprietor is without any job is dependent on his children for day to day requirement - factory is lying closed and no contrary has been brought on record as regards financial position of the proprietor - unconditional stay granted - pre-deposit of duty waived

Summary

Issues:
1. Duty and penalty imposition against the appellant for manufacturing semi-finished electrical fans as a job worker.
2. Applicability of area-based exemption notifications to the appellant's factory in Himachal Pradesh.
3. Dispute regarding the filing of a declaration for availing the benefit of the exemption notification.
4. Financial hardship faced by the appellant leading to the closure of the factory.

Issue 1: Duty and Penalty Imposition
The appellant, a job worker for a manufacturer of electrical fans, was charged with duty and penalty for manufacturing semi-finished electrical fans from materials supplied by the principal manufacturer. The lower authorities considered the appellant's activities as manufacturing, invoking a longer period of limitation, which the appellant contested by claiming no manufacturing occurred, and the factory's location in Himachal Pradesh qualified for area-based exemptions.

Issue 2: Applicability of Exemption Notifications
The appellant's contention that the area-based exemption notifications should apply to their factory in Himachal Pradesh was rejected by the lower authorities due to the appellant's failure to file a declaration as required by the notifications. The appellant argued that the purpose of the declaration was merely to inform the Revenue of the unit's existence in the area and should not be a reason to deny the exemption benefit.

Issue 3: Filing of Declaration for Exemption
The Revenue supported the requirement of filing a declaration for availing the exemption benefit, emphasizing it as an essential condition of the notification. The appellant's advocate argued that the technical ground of non-filing should not prevent the appellant, located in the designated area, from benefiting from the exemption meant for area development.

Issue 4: Financial Hardship and Factory Closure
The appellant pleaded financial hardship due to the factory closure, leading to the proprietor's dependence on family. An affidavit was submitted, and the Revenue verified the factory's closed status. Considering the financial difficulties and the precedent of granting unconditional stay to a similar job worker, the Tribunal dispensed with the pre-deposit of duty and penalty, allowing the stay petition.

In conclusion, the Tribunal ruled in favor of the appellant, acknowledging the technicality of the declaration filing requirement for exemption benefits and the financial hardship faced by the appellant. The Tribunal dispensed with the duty and penalty pre-deposit, granting a stay on the proceedings and directing the appeal to be listed along with a similar case for further reference.