2017 (5) TMI 619 - AT - Central Excise

Deemed manufacture - fixation of MRP on specified goods - Telemarketing of products by TV advertising - The Appellant purchases goods from importers at local level and carry out the process of packing in secondary boxes as well as putting stickers which bears the name of the product, the importer s name, name of the company marketing it, item code, date of import and the MRP - case of Revenue is that the Appellant has affixed the MRP on packing of goods and since the goods are falling under third schedule to the Central Excise Act, hence in terms of Section 2 (f) (iii) the activity of the Appellant amounts to manufacture - demand - Held that - the Appellants were importing goods and after packing of same in corrugated boxes were affixing the importers name as well as MRP in addition to other details. Such activity is covered under manufacture under Third Schedule to the Central Excise Tariff as stipulated under Section 2 (f) of the Central Excise Act - the duty demand has been made from the Appellant by holding the goods excisable on ground of their activity being amounting to manufacture. In such case when the Appellant s activity are amounting to manufacture they are entitled for the credit of duty paid inputs and input services received by them - demand upheld. Extended period of limitation - Held that - as apparent from the investigation there is no instance showing that the Appellant had intention to evade payment of duty. We find that the Appellants were in ignorance of schedule Third to the Central Excise Tariff - in absence of any contumacious conduct on the part of the Appellant as well as in absence of any intention to evade payment of duty, we hold that the demands made against the Appellant M/s Telebrands is hit by limitation of time and are time barred - the confiscation of goods and imposition of penalty cannot be justified - demand set aside being time barred. Penalty on appellant - rule 26 - Held that - since the intention to evade payment of duty is not present in this case, there is no reason to impose penalty upon him. Consequentially, no penalty could have been imposed upon him u/r 26. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Classification of goods under Central Excise Act, liability for duty based on MRP, applicability of SSI exemption, time-barred demands, imposition of penalties.

Classification of Goods and Liability for Duty:
The case involved M/s Telebrands engaged in telemarketing of products through TV advertising, purchasing goods from importers, and packing them with additional safety measures and MRP labels. The Revenue alleged the goods fell under specific chapters and were liable for duty under the Central Excise Act. The Appellants argued that the packing process did not amount to manufacture and should be exempt under SSI provisions. They also claimed entitlement to duty credit on inputs. The Tribunal found the activity constituted manufacture under the Act, but the Appellants, as owners of the brand name, were entitled to SSI exemption and duty credit, citing relevant case laws.

SSI Exemption and Time-Barred Demands:
The Appellants challenged the demands as time-barred, contending they lacked intent to evade duty and were unaware of the relevant tariff schedule. The Tribunal agreed, noting the transparent business practices, public advertising, and absence of suppression of facts. Consequently, the demands were deemed time-barred, and the confiscation of goods and penalties were set aside.

Imposition of Penalties:
Regarding penalties, the Tribunal found no evidence of contumacious conduct or intent to evade duty, leading to the conclusion that penalties were unjustified. The Appellant, Shri Hitesh Israni, was not liable for penalties under Rule 26. As a result, the Tribunal set aside the penalties imposed.

In conclusion, the Tribunal set aside the impugned order, allowing the appeals and providing consequential reliefs, if any, in favor of the Appellants. The judgment was pronounced on 03/05/2017 by the Tribunal, comprising Mr. Ramesh Nair, Member (Judicial), and Mr. Raju, Member (Technical).