2017 (5) TMI 92 - AT - Central Excise

Levy of duty - The aluminium dust which arises as a result of process of metallization of printed plastic film is cleared by the appellant without payment of duty under the cover of proper invoices - case of Revenue is that the appellant had not submitted invoices along with ER-1 return perhaps they were not required to submit the same; however, they have never intimated to the Department that they have cleared aluminium dust/ash without payment of Central Excise duty - Held that - ER-1 was not produced and prima facie, appellant has suppressed the material facts from the Department. When it is so, then we deem fit, in the interest of justice, to set aside impugned order and remand the same to the adjudicating authority to decide the issue de novo but by providing reasonable opportunity of being heard - appeal allowed by way of remand.

Summary

Issues:
1. Appeal against Order-in-Appeal No.475/2011 dated 20.12.2011 regarding duty on aluminium dust arising from the metallization process during the manufacture of flexible packaging laminates.

Analysis:
The appellant, engaged in manufacturing flexible packaging laminates, availed Cenvat credit for duty paid on inputs and services. The issue arose when the appellant cleared aluminium dust, a byproduct of the metallization process, without paying Central Excise duty. The department demanded duty on the aluminium dust, leading to the present appeal.

During the appeal, the appellant argued that duty on the aluminium dust was not leviable, citing various case laws and circulars to support their claim. However, the department, represented by the ld. DR, relied on the impugned order.

The Tribunal observed that the case laws cited by the appellant were not directly applicable to the issue at hand. Additionally, it was noted that the appellant had not submitted invoices along with the ER-1 return, and the Department only became aware of the clearance of aluminium dust without duty payment during an audit, indicating a suppression of material facts.

Consequently, the Tribunal set aside the impugned order and remanded the case to the adjudicating authority for a fresh decision, emphasizing the importance of providing a reasonable opportunity for the appellant to be heard. The appellant assured full cooperation with the Department, and fresh evidence could be admitted as per law if necessary.

In conclusion, the impugned order was set aside, and the appeal was allowed by way of remand for further adjudication on the issue of duty on the aluminium dust arising from the metallization process during the manufacture of flexible packaging laminates.