2016 (5) TMI 779 - AT - Central Excise

Demand of duty - Seizure of 143 M.T. of calcite powder - Classifiable under C.T.H. 3824.90 leviable Central Excise to duty at the rate of 16% ad-valorem - Held that - it has evident that the Commissioner (Appeals) has noted that the appellant is not seriously disputing the fact that the manufacturing process of their product involved apart from crushing, grinding other process as well such as roasting. The appellant contended that it did not do any roasting at all. The Commissioner (A) s observation does not dispute that the appellant disputed the same though Commissioner (A) did not regard it to have been seriously disputed. So long as the roasting was disputed, the Commissioner (A) was not justified in assuming that there was roasting without corroborative evidence which doesn t exist. Resultantly the impugned order becomes devoid of the adequate basis to sustain the classification under CTH 3824.90. Demand of duty - Willful misstatement/suppression of facts - Held that - willful misstatement/ suppression of fact has been upheld by the Commissioner (Appeals) essentially on the ground that the appellant did not take registration and clear the goods without payment of duty. In case of CCE vs. Chemphar Drugs Liniments 1989 (2) TMI 116 - SUPREME COURT OF INDIA , the Supreme Court held that something positive other than mere inaction or failure on the assessee s part or conscious withholding of information when assessee knew otherwise is required for invoking extended period. In the case of Continental Foundation Joint Venture Vs CCE, Chandigarh-I 2007 (216) ELT 177 (SC)2007 (8) TMI 11 - SUPREME COURT OF INDIA , the Supreme Court went to the extent of saying that any incorrect statement by itself cannot be equated with willful mis-statement. Therefore, in the light of these judicial pronouncements, we are of the view that the allegation of willful misstatement / suppression of facts is also not sustainable in the present case. Consequently demand pertaining to the period beyond the normal period of one year will also be hit by time bar. - Decided in favour of appellant

Summary

Issues Involved:
1. Confiscation and redemption of seized calcite powder.
2. Demand for duty on clearances of coated calcite powder.
3. Imposition of penalty on the assessee.
4. Charging of interest on the duty amount.
5. Imposition of penalty on an individual under Rule 209A.

Detailed Analysis:

1. Confiscation and Redemption of Seized Calcite Powder:
The Additional Commissioner ordered the confiscation of 143 MT of calcite powder valued at Rs. 5,27,000 under Rule 173Q of the Central Excise Rules, 1944. However, an option was given to the assessee to release the seized goods on payment of a redemption fine of Rs. 3,00,000. The redeemed quantity was to be recorded in the stock register and removed on payment of appropriate Central Excise Duty.

2. Demand for Duty on Clearances of Coated Calcite Powder:
The demand for duty amounting to Rs. 20,63,149 was confirmed under Section 11A(1) of the Central Excise Act, 1944, for clearances made from May 1995 to July 1999. The appellant contended that the calcite powder was classifiable under CTH 25.05, liable to nil duty, and that the addition of stearic acid up to 1% was for ease of grinding, not coating. The initial chemical test reports classified the goods under CTH 25.05, but a subsequent report classified them under CTH 3824.90. The Tribunal found inconsistencies in the chemical examiner's reports and noted that the manufacturing process did not involve special treatment required for classification under 3824.90.

3. Imposition of Penalty on the Assessee:
A penalty equal to the duty amount of Rs. 20,63,149 was imposed under Rule 173Q for the period from May 1995 to 27.09.1996 and under Section 11AC for the period from 28.09.1996 to July 1999. The appellant argued that there was no evidence of willful misstatement or suppression of facts. The Tribunal referred to judicial pronouncements indicating that mere inaction or failure does not constitute willful misstatement. Consequently, the allegation of willful misstatement/suppression was deemed unsustainable.

4. Charging of Interest on the Duty Amount:
Interest on the duty amount of Rs. 20,63,149 was ordered under Section 11AB. The Tribunal found that the demand for duty beyond the normal period was time-barred due to the absence of willful misstatement/suppression, rendering the interest charge unsustainable.

5. Imposition of Penalty on an Individual under Rule 209A:
A penalty of Rs. 1,00,000 was imposed on an individual under Rule 209A of the Central Excise Rules, 1944. The Tribunal did not provide a specific analysis for this penalty, but the overall findings regarding the lack of evidence for willful misstatement/suppression would imply that this penalty was also unjustified.

Conclusion:
The Tribunal set aside the impugned order, allowing the appeal. The confiscation, duty demand, penalties, and interest charges were found to be unjustified due to inconsistencies in chemical reports and lack of evidence for willful misstatement or suppression of facts. The operative portion of the judgment was pronounced in the open court.