2016 (12) TMI 969 - AT - Central Excise

Cigarettes - clandestine removal - samples drawn for various tests - non-destructive nature of quality control test - whether duty can be charged on cigarettes taken to in-house laboratory for conducting such tests? - Held that - We note that cigarettes are the commodity under physical control Central Excise Officers are posted in the manufacturing units for all the 24 hours. Therefore, all the activities going on in respect of manufacture and levy of Central Excise duty in cigarettes factories are within the knowledge of Central Excise authorities. Therefore, the contention of the Department that there has been suppression of fact on the part of the appellant, is not sustainable. The entire demand is raised under extended period and since the suppression cannot sustain, the invocation of proviso to Sub-Section (1) of Section 11 A of Central Excise Act, 1944 also does not sustain. We, therefore, hold that the impugned show-cause-notice is not sustainable in Law - decided in favor of appellant.

Summary

Issues:
- Duty demand for samples drawn for tests
- Allegations of suppression and extended period for demand of duty
- Appeal against Order-in-Appeal No.161-CE/GZB/2012

Analysis:
1. Duty demand for samples drawn for tests:
The case involved the appellants, who were manufacturers of different brands of Cigarettes and registered with the Central Excise Department. The department alleged that the appellants drew samples of cigarettes for various tests without maintaining proper records, leading to the suspicion of clearance of goods without duty payment. A show-cause notice was issued for demand of duty, interest, and penalties. The Original Authority upheld the demand of Central Excise duty, penalties, and personal penalty on the Manager-Accounts. The appellants contended that the tests conducted were part of the manufacturing process, and duty should not be charged on samples taken for testing purposes as the cigarettes were not removed from the factory.

2. Allegations of suppression and extended period for demand of duty:
The appellants argued that the factory was under physical control, and there was no charge of clandestine removal. They contended that since the manufacturing unit was under the supervision of the Central Excise department, the allegations of suppression and the invocation of the proviso to Sub-Section (1) of Section 11 A for extending the period in demand of duty were not sustainable. However, both the Original Authority and the Ld. Commissioner (Appeals) held that the appellants had suppressed facts regarding the drawing of samples for tests, leading to the confirmation of the demand for Central Excise duty.

3. Appeal against Order-in-Appeal No.161-CE/GZB/2012:
The appellants appealed before the Appellate Tribunal challenging the Order-in-Appeal No.161-CE/GZB/2012. The Tribunal considered the contentions of both parties and noted that the cigarettes were under physical control, with Central Excise Officers present in the manufacturing units round the clock. Consequently, all activities related to manufacturing and duty levy were within the knowledge of the authorities. The Tribunal held that the suppression alleged by the Department was not sustainable, and as a result, the demand raised under the extended period and the invocation of the proviso to Sub-Section (1) of Section 11 A of the Central Excise Act, 1944 were not valid. Therefore, the Tribunal set aside the impugned Order-in-Original and Order-in-Appeal, allowing both appeals and granting the appellants entitlement to consequential benefits.

This detailed analysis of the judgment highlights the issues of duty demand for samples drawn for tests, allegations of suppression and extended period for demand of duty, and the appeal against Order-in-Appeal No.161-CE/GZB/2012, providing a comprehensive understanding of the legal proceedings and the Tribunal's decision.