2014 (10) TMI 237 - AT - Central Excise

Waiver of pre-deposit of duty - SSI exemption Notification No.8/2007-CE, dated 01.03.2007 - Denial of CENVAT Credit - goods were cleared under the brand name of other person - Held that - Adjudicating authority accepted that the inputs were received in their factory. But, the Cenvat credit was denied on the ground that the applicant failed to produce the proper records to show that the inputs were used in the manufacture of the final product. It is seen that after taking into consideration of the cum-duty benefit, the demand would be ₹ 69,72,687/-. The applicant also contended the demand is barred by limitation. We are not impressed with the argument of the Counsel for the applicant that the demand is barred by limitation. We find that since 2000, the applicant was clearing the goods under the brand name of another person and paying duty. In 2007, the applicant opted SSI exemption and suppressed the use of brand name to the Department. applicant is liable to pay duty of about ₹ 69 lakhs and out of this, they already deposited an amount of ₹ 12,95,239/-. We find that there is a dispute of the use of the inputs - Conditional stay granted.

Issues:
1. Waiver of pre-deposit of duty
2. Claim of SSI exemption
3. Denial of Cenvat credit
4. Barred by limitation
5. Dispute of use of inputs

Waiver of pre-deposit of duty:
The applicant sought waiver of pre-deposit of duty amounting to Rs. 78,54,941/- along with interest and penalty for the period from Apr.’07 to Dec.’11. The applicant, engaged in manufacturing 'Cold Rolled Metal Sections', claimed SSI exemption under Notification No.8/2007-CE as the clearance value was within the exemption limit. However, a show-cause notice was issued denying the exemption on the grounds of goods being cleared under another person's brand name. The Settlement Commission rejected the application, directing the applicant to pay the admitted duty and interest. The Tribunal directed the applicant to pre-deposit Rs. 10,00,000/- within eight weeks, with the balance amount of duty, interest, and penalty to be waived upon compliance.

Claim of SSI exemption:
The applicant had been clearing goods under the brand name of another person since 2000 and opted for SSI exemption in 2007 while suppressing the use of the brand name. The demand for duty, considering cum-duty benefit, was determined to be Rs. 69,72,687/-. The Tribunal found the argument of limitation raised by the applicant's counsel unconvincing, emphasizing the continuous clearance under a different brand name and payment of duty since 2000. The applicant was directed to make the specified pre-deposit to resolve the dispute.

Denial of Cenvat credit:
Although the adjudicating authority acknowledged the receipt of inputs in the applicant's factory, Cenvat credit was denied due to the lack of proper records demonstrating the utilization of inputs in the final product's manufacture. The applicant claimed Cenvat credit benefit of Rs. 56,85,567/-, but the denial was upheld based on insufficient documentation. The Tribunal noted the applicant's production of franchisee agreements and other records to establish input usage, which would be examined during the appeal hearing.

Barred by limitation:
The applicant contended that the demand was time-barred, but the Tribunal disagreed, citing the continuous clearance under a different brand name and subsequent claim of SSI exemption in 2007. The Tribunal found the demand not barred by limitation and directed the applicant to make the specified pre-deposit within the given timeframe.

Dispute of use of inputs:
A dispute arose regarding the use of inputs in the manufacturing process. The applicant produced franchisee agreements and other records to support input utilization, which would be scrutinized during the appeal hearing. Considering the circumstances, the Tribunal directed the applicant to pre-deposit a specified amount within eight weeks, with the balance duty, interest, and penalty to be waived upon compliance.

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