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2014 (4) TMI 221 - AT - Central ExciseEligibility of SSI exemption - Amalgamation of company - Effective date of amalgamation - Whether the effective date of amalgamation in the present case is 22.10.1997 as contended by the appellant or 01.04.1996 as alleged by the Revenue for the purpose of eligibility of SSI exemption - Held that - no specific date of amalgamation has been specified by the of Order dated 01.10.1997 of the Hon ble High Court of Gujarat. The effective date of amalgamation/ transfer therefore should be 22.10.1997 the date when the transferor company M/s Marigold Coatings P Ltd filed the certified copy of the court s order dated 01.10.1997 with the Registrar of Companies. We accordingly hold that the date of amalgamation/ transfer in this case will be 22.10.1997 and consequently appellants are eligible for SSI exemption notification up to 21.10.1997 - Following decision of of Tata Iron and Steel Company Ltd Vs. Presiding Officer and Ors. 1999 (8) TMI 952 - PATNA HIGH COURT and State of A.P. Vs Jindal Strips Limited 2006 (7) TMI 621 - ANDHRA PRADESH HIGH COURT - Decided in favour of assessee. Clearances of raw materials removed from Sab Chem Division under the cover of challans - Whether duty on raw materials removed from Sab Chem Division of appellant under the cover of challans maintained by the appellant could be demanded from the Sab Chem Division of the appellant - Held that - During the material period the Sub Chem Division was engaged in the manufacture of excisable goods on job work basis for M/s Berger Paints Ltd which was cleared on payment of full rate of duty after availing MODVAT Credit of duty paid on inputs. While it is true that excise duty cannot be demanded on removal of raw materials on which no MODVAT Credit had been taken but when MODVAT Credit was availed by Sab Chem Division on raw materials/ inputs received from Berger Paints Ltd a part of which (involving duty of 2, 21, 134/- as accepted by the appellant) was subsequently returned to Berger Paints Ltd Sab Chem Division was required to pay duty on the such returned inputs/ raw materials at the time of removal from their factory in terms of the provisions contained in Rule 57F of the erstwhile Central Excise Rules 1944. It is also evident from appeal records that the Sab Chem Division was also manufacturing excisable goods for the main appellant out of raw materials supplied by them without availing MODVAT Credit - Partial demand sustainable - Decided partly in favour of assessee. Removal of finished goods without payment of duty - Held that - all goods including inputs/ raw materials whether excisable or not invariably used to be removed from the appellant s factory under the cover of serially numbered challans issued from bound books since the inception of the appellant s factories. The investigating officers have not come across even a single instance where the appellant had removed any goods at any point of time without the cover of the said serially numbered challans. Even the alleged evasion of duty on various counts in this case has been worked out by the investigating officers on the basis of the said serially numbered Challans treating them as authentic evidence of removal of goods and the main appellant has explained their position on the basis of the serially numbered challans - The demand is therefore set aside and the matter is remanded to the adjudicating authority to adjudicate this portion of the demand after supplying copies of all the relevant relied upon records on this issue to the appellants - Decided in favour of assessee. Confiscation of goods - Clandestine removal of goods - Held that - goods were lying within the appellant s factory. There was no evidence on record to show that there was any attempt to remove those goods clandestinely without payment of duty. Appellant has given reasons as to why according to them the entries are required to be made in the statutory records only when goods are in a condition of finishing as available in the market. In view of the above decisions on the issue we hold that the goods in question were not liable to confiscation under Rule 173Q of the erstwhile Central Excise Rules 1944 - However penalty upheld - Decided partly in favour of assessee.
Issues Involved:
1. Effective date of amalgamation for SSI exemption eligibility. 2. Duty on raw materials removed from Sab Chem Division. 3. Duty on finished goods allegedly removed without payment. 4. Duty on debit notes related to job work for Berger Paints Ltd. 5. Confiscation of goods valued at Rs. 10,83,459/- found unaccounted. 6. Confiscation of goods valued at Rs. 88,800/- removed without corresponding excise invoice. Detailed Analysis: 1. Effective Date of Amalgamation for SSI Exemption Eligibility: The tribunal examined whether the effective date of amalgamation was 22.10.1997, as contended by the appellant, or 01.04.1996, as alleged by the Revenue. The tribunal referred to various judgments, including those from the Hon'ble High Courts of Patna and Andhra Pradesh, which established that the effective date of amalgamation is when the certified copy of the court's order is filed with the Registrar of Companies. In this case, the effective date was determined to be 22.10.1997. Consequently, the appellants were eligible for SSI exemption up to 21.10.1997, and the demand of Rs. 9,32,948/- was set aside. 2. Duty on Raw Materials Removed from Sab Chem Division: The tribunal found that the duty of Rs. 7,44,510/- was demanded for clearances of raw materials. It was noted that Sab Chem Division was engaged in job work for M/s Berger Paints Ltd and availed MODVAT Credit on inputs. The tribunal held that duty on returned inputs involving Rs. 2,21,134/- was justified under Rule 57F of the erstwhile Central Excise Rules, 1944. The remaining demand was not sustainable. 3. Duty on Finished Goods Allegedly Removed Without Payment: The tribunal addressed the demand of Rs. 7,81,593/- based on serially numbered challans. The appellant argued that duty amounting to Rs. 5,00,761/- was paid through corresponding invoices, and Rs. 52,822/- pertained to job work for Berger Paints Ltd. The tribunal noted that copies of all seized records were not provided to the appellant, violating principles of natural justice. Thus, the demand was set aside, and the matter was remanded for re-adjudication after supplying the relevant records to the appellant. 4. Duty on Debit Notes Related to Job Work for Berger Paints Ltd: The tribunal found that debit notes raised for increased job charges due to fuel and electricity price hikes did not attract duty liability on the differential job charges. Consequently, the demand of Rs. 49,059/- was set aside. 5. Confiscation of Goods Valued at Rs. 10,83,459/- Found Unaccounted: The tribunal referred to multiple case laws establishing that mere non-entry of goods in RG-1 does not justify confiscation without evidence of intent to evade duty. Since the goods were within the factory and there was no evidence of clandestine removal, the confiscation was set aside. 6. Confiscation of Goods Valued at Rs. 88,800/- Removed Without Corresponding Excise Invoice: The tribunal found no intent to evade duty as the goods were covered by regular challans and remained the property of the appellants. The duty paid by Sab Chem Division would have been available as MODVAT Credit, leading to a revenue-neutral situation. Thus, the confiscation was set aside. Penalties: The tribunal upheld a penalty of Rs. 2,000/- for improper maintenance of central excise records under Rule 226 of the erstwhile Central Excise Rules, 1944. All other penalties were set aside due to the case being based on improper accounting and interpretation of law. Conclusion: The appeals were allowed to the extent indicated, with specific demands and confiscations being set aside or remanded for re-adjudication, and penalties adjusted accordingly.
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