2009 (1) TMI 150 - AT - Central Excise

Demand for NCCD on POY consumed captively holding that exemption under Notification No. 67/95, dt. 16-3-1995 is not applicable - Assessee submit that they are eligible for exemption from NCCD in respect of captive consumption In respect of AED(GSI), Notification ibid specifically provides exemption when used within the factory - In the absence of inclusion of NCCD u/not. 67/95 and in view of the similarity between Section 136 of Finance Act, 2001 and Section 3(3) of Additional Duties of Excise (GSI) Act, 1957, decision of Commissioner (Appeals) has to be upheld

Summary

Issues:
- Demand for NCCD on POY consumed captively
- Applicability of exemption under Notification No. 67/95
- Imposition of penalty on the appellant-company and the Director

Analysis:
1. Demand for NCCD on POY consumed captively:
The appeals were filed against the demand for NCCD on POY consumed captively. The appellants argued that NCCD levied under the Finance Act, 2001 is a duty of excise. They cited Circular No. 641/32/2002-CX, which clarified that no NCCD is leviable on goods exported under bond. The appellants contended that they are eligible for exemption from NCCD in respect of captive consumption. However, the Tribunal found that NCCD was not included under Notification No. 67/95, which provides exemption when goods are used within the factory. The Tribunal upheld the decision of the Commissioner (Appeals) regarding the demand for NCCD.

2. Applicability of exemption under Notification No. 67/95:
The Tribunal noted the similarity between Section 136 of the Finance Act and Section 3(3) of the Additional Duties of Excise (Goods of Special Importance) Act, 1957. While Notification No. 67/95 specifically exempts AED(GSI) when used within the factory, it does not mention NCCD. As a result, the Tribunal upheld the decision of the Commissioner (Appeals) regarding the applicability of the exemption under Notification No. 67/95.

3. Imposition of penalty on the appellant-company and the Director:
The Commissioner (Appeals) had reduced the penalty imposed on the appellant-company and the Director. The Tribunal acknowledged that there may not have been an intent to evade duty based on the interpretations presented. Therefore, the Tribunal set aside the penalty, concluding that no penalty would be justified. While the penalty was waived, the appeals were otherwise rejected by the Tribunal.

In conclusion, the Tribunal upheld the demand for NCCD on POY consumed captively, affirmed the decision regarding the exemption under Notification No. 67/95, and set aside the penalty imposed on the appellant-company and the Director due to the lack of intent to evade duty.