2017 (9) TMI 14 - AT - Central Excise

SSI exemption - N/N. 9/2003 dated 01/03/2003 - switchover from discharging normal excise duty to small scale exemption - the appellants were discharging Central Excise duty for the year 2004-2005 in terms of N/N. 9/2003 dated 01/03/2003. The said notification was rescinded w.e.f. 01/04/2005. During the financial year 2005-2006, for the period 01/04/2005 to 31/08/2005, the appellants had paid duty on the goods. However, the appellants started availing exemption under N/N. 8/2003-CE from 01/09/2005 to 31/03/2006 and surrendered the Central Excise registration - case of Revenue is that when the appellant continued to pay duty at the normal rate even in the new financial year 2005-2006, they cannot switch over to the SSI exemption in the middle of the year. Held that - Evidently, the appellants did not opt for availing exemption available to small scale industries in terms of Notification 8/2003. We are not convinced by the argument of the appellant that they have never given in writing their option not to avail exemption under this notification. Clearly, the appellants paid duty at the normal tariff rate for 5 months from 01/04/2005 without opting for SSI exemption under Notification 8/2003. It is clear that they have specifically opted not to avail the exemption during this period. Their plea that they have not filed written option in this regard will not help their case. Their failure to file a written letter cannot add to the benefit of the appellant. Their payment of duty upto 31/08/2005 clearly shows that they have not opted for exemption under the said notification. As such, they cannot switch over to SSI exemption, as per their choice, in the middle of the year. The appellants pleaded for recalculation of duty demand considering the gross receipt as cum duty value. We hold that the same can be done on submission of evidence by the appellants to the effect that they have not indicated in their sales invoice or collected Central Excise duty separately - The eligibility of Cenvat credit on various inputs claimed to have been used during the period for clearance of final products can also be verified by the Jurisdictional Authority - appeal allowed by way of remand.

Issues:
1. Applicability of Notification 8/2003-CE for duty exemption.
2. Eligibility to switch over to small scale exemption.
3. Imposition of Central Excise duty demand, interest, and penalty.
4. Calculation of duty demand considering gross receipt as cum duty value.
5. Verification of eligibility for Cenvat credit on inputs used in final products.

Analysis:
1. The case involved a dispute regarding the applicability of Notification 8/2003-CE for duty exemption. The appellants, engaged in manufacturing plastic products, had availed Cenvat credit on inputs under Notification 9/2003-CE. The notification was rescinded w.e.f. 01/04/2005, providing the appellants with the option to either avail exemption under Notification 8/2003-CE or pay duty at the tariff rate with credit on inputs. The appellants cleared goods for home consumption during 2004-2005 under Notification 9/2003-CE. However, they started availing exemption under Notification 8/2003-CE from 01/09/2005 to 31/03/2006, leading to a dispute with the Revenue regarding eligibility for such exemption.

2. The issue of whether the appellants were eligible to switch over to the small scale exemption under Notification 8/2003-CE in the middle of the financial year was contested. The Original Authority and the Commissioner (Appeals) held that the appellants, by paying duty at the normal rate from 01/04/2005 to 31/08/2005, had not opted for the small scale exemption. The Revenue argued that the appellants could not switch to the SSI exemption mid-year as per the provisions of the notification, which required a manufacturer to maintain the chosen option for the entire financial year.

3. The Revenue initiated action against the appellants to demand Central Excise duty for the period 01/09/2005 to 31/03/2006, contending that the appellants were not eligible for exemption under Notification 8/2003-CE. The Original Authority confirmed a duty demand of &8377; 9,77,649/-, along with interest and a penalty equivalent to the duty amount. The Commissioner (Appeals) upheld the original order, leading to the appellants challenging the decision, claiming they had correctly availed the exemption and contesting the penalty imposed.

4. The appellants pleaded for a recalculation of duty demand by considering the gross receipt as cum duty value. The Tribunal held that such recalculation could be done if evidence was provided by the appellants showing that the value included Central Excise duty. Verification of duty paying documents and related accounts was required for this purpose, and any reduction in duty demand would lead to a corresponding reduction in the penalty amount.

5. The eligibility of the appellants for Cenvat credit on various inputs used in the manufacture of final products was also a subject of contention. The Tribunal directed the Jurisdictional Authority to verify the claimed Cenvat credit on inputs based on satisfactory examination of duty paying documents and related accounts. Subject to verification, the Cenvat credit on inputs would be deemed eligible for the appellants.

In conclusion, the Tribunal dismissed the appeal, upholding the duty demand but allowing for a recalculation based on cum duty value and verification of Cenvat credit eligibility on inputs.

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