2013 (10) TMI 714 - AT - Central Excise

SSI Exemption clearance of goods without obtaining central excise registration number and non maintenance of statutory records - penalty for procedural lapse - Waiver of Pre-deposit Held that - Following Deccan Industrial Products Pvt. Ltd. vs. CCE, Hyderabad 2002 (8) TMI 743 - CEGAT, BANGALORE - they were not even required to observe Central Excise formalities - The departments allegation against the appellant unit would be valid only if on the basis of their clearances, they were required to obtain Central Excise registration or they were not eligible for Central Excise registration - There is no seizure of any documents from the unit showing that their clearances during 2010-2011 or 2011-2012 were beyond the threshold limit for SSI exemption - Up till now no show cause notice has been issued to the unit for denying SSI exemption to them and demanding duty - Prima facie during the period of dispute, the appellant unit was not even required to obtain Central Excise registration and was not even to required to maintain the statutory record, and therefore, the imposition of penalty for clearing without invoice and not maintaining records of the impugned goods, does not appear to be correct - The appellant have strong prima facie case in their favour - The requirement of pre-deposit of penalty waived for hearing of appeals and recovery stayed till the disposal of the appeals stay granted.

Summary

Issues:
1. Central Excise registration requirement for the appellant company.
2. Confiscation of goods and imposition of penalties.
3. Prima facie case for waiver of pre-deposit of penalty.

Central Excise Registration Requirement:
The appellant company, a manufacturer of DVD players, was availing SSI exemption during the dispute period. The central issue was whether the company was required to obtain Central Excise registration and maintain records. The jurisdictional officers seized goods due to alleged contravention of Central Excise Rules by clearing goods without invoices and not accounting for finished goods. The Commissioner (Appeals) partially upheld the confiscation. However, the Tribunal noted that the company's clearances were below the threshold for SSI exemption during the relevant years, following precedents that exempted such units from Central Excise formalities. The only evidence was a retracted statement by an accountant, with no documents showing clearances exceeding the threshold. As no show cause notice was issued for denying SSI exemption, the Tribunal found the company was not required to register or maintain records. Consequently, the imposition of penalties was deemed incorrect.

Confiscation of Goods and Penalties:
The appellant company faced confiscation of goods and penalties based on the alleged contravention of Central Excise Rules. The officers seized goods without invoices, leading to penalties imposed on the company, its Managing Director, accountant, and driver. The Commissioner (Appeals) upheld part of the confiscation and penalties. However, the Tribunal found that the company's clearances did not necessitate Central Excise registration or record-keeping, as they fell below the SSI exemption threshold. The primary evidence, a retracted statement, lacked corroborative documentation, and no show cause notice was issued for duty demand. The Tribunal held that the penalties were not justified, as the company had a strong prima facie case in its favor. Consequently, the requirement for pre-deposit of penalties was waived, and recovery was stayed pending appeal disposal.

Prima Facie Case for Waiver of Pre-deposit of Penalty:
The Tribunal considered the arguments of both sides regarding the penalties imposed on the appellant company. The company contended that the evidence, primarily a retracted statement, did not support the alleged sales turnover exceeding the SSI exemption threshold. The department argued for upholding the penalties based on the statement and sales turnover. However, the Tribunal found that the company's clearances did not warrant Central Excise registration or record-keeping, as per precedents and lack of evidence showing sales beyond the exemption limit. Given the lack of documents supporting duty demand and the retracted statement, the Tribunal concluded that the penalties were not justified. Therefore, the requirement for pre-deposit of penalties was waived, and recovery was stayed until the appeal's disposal.