2016 (9) TMI 475 - AT - Central Excise

Whether the Appellant would be eligible to discharge duty @ 16% as per tariff rate or the benefit of Notification No.6/2002-CE, dt.01.03.2002 be allowed in calculating the duty liability on the cleared quantity of 26157.600 kgs of Textured yarn - period involved is 01.04.2002 to 07.06.2002 - Held that - from the impugned order we could not notice any observation on the evidentiary value of the CA certificate and its acceptability showing that the said quantity of POY had been purchased and consumed in their factory and the payments were made through A/C payee cheques, particularly when the statements dt.08.06.2002 and 17.10.2003 of Shri Ratanlal Mahavirprasad Daruka are contradictory in nature and the invoices were produced on 02.09.2002 by the Appellant before the notice was issued to them on 28.04.2005. Therefore, it is appropriate to verify/examine the said evidences before arriving at the conclusion. Accordingly, in the interest of justice, we remand the matter to the Ld. Commissioner (Appeals) to decide the issues afresh after considering all evidences on record and the evidences that would be produced by the Appellant and in particular the acceptability or otherwise of the CA Certificate. - Appeal disposed of

Summary

Issues Involved:
- Duty liability calculation under Notification No.6/2002-CE
- Rejection of invoices as evidence
- Eligibility for penalty reduction

Analysis:

1. Duty liability calculation under Notification No.6/2002-CE:
The case involved the Appellant manufacturing and clearing Textured Yarn without payment of duty. The central issue was whether the Appellant could avail the benefit of Notification No.6/2002-CE in calculating duty liability. The Notification required duty payment on the Partially Oriented Yarn (POY) used for texturisation and no availing of CENVAT Credit on the POY. The Appellant claimed that even though Textured Yarn was cleared without duty payment, they used duty-paid POY and did not avail CENVAT Credit. The authorities rejected the Appellant's evidence initially but did not provide a clear analysis of the evidence's acceptability. The Tribunal remanded the matter to the Commissioner (Appeals) for a fresh decision, emphasizing a thorough examination of all evidence, including a Chartered Accountant's certificate and purchase documents, to determine if the POY used had indeed suffered duty.

2. Rejection of invoices as evidence:
The Adjudicating authority rejected the invoices produced by the Appellant, stating that the quantity mentioned was insufficient to manufacture the cleared Textured Yarn. The Authorized Representative for the Revenue argued that the Appellant failed to provide sufficient evidence to support their claim of using duty-paid POY. The Tribunal highlighted the contradictory nature of statements by the Appellant's Authorized Signatory and the timing of invoice submission before the issuance of the Show Cause Notice. The Tribunal directed a reevaluation of the evidence and emphasized the importance of verifying the Chartered Accountant's certificate and purchase documents to determine the duty liability accurately.

3. Eligibility for penalty reduction:
The Appellant argued for a penalty reduction, citing precedents from the Hon'ble Gujarat High Court. They claimed eligibility to pay 25% of the penalty imposed under Sec.11AC of CEA,1944, subject to fulfilling necessary conditions. The Tribunal directed the consideration of this argument by the Commissioner (Appeals) after the determination of duty liability and quantum of penalty. The Appellant's plea for penalty reduction would be assessed based on the conditions set forth in relevant provisions and previous court decisions.

In conclusion, the Tribunal remanded the case for a fresh decision, focusing on the evidence regarding duty-paid POY usage, rejected invoices, and potential penalty reduction eligibility. The Appellant's claims under Notification No.6/2002-CE needed thorough examination, and the penalty reduction argument would be considered post the duty liability determination.