2009 (4) TMI 188 - AT - Central Excise

Textile and textile articles - In terms of Sl. No. 5A of Notification No. 29/2004-C.E., yarns of Chapter 54 procured from outside and subjected to any process by a manufacturer who does not have the facility in his factory for the manufacture of filament yarn as explained in the explanation given under the description of goods against Sl. No. 5A, are chargeable to duty @ 8% adv.). - Explanation given in the notification provides meaning of manufacture of yarn manufacture of yarns to mean manufacture of filaments of organic polymers benefit of notification not available consequentially, it is held that the correct method of demanding differential duty would be to treat the total realization of the amount for the sale of texturised yarn in question as cum-duty price and arrive at the duty liability. Further, since issue of exemption under notification ibid is contentious, interpretation of assessee is not perverse, penalties are set aside

Issues Involved:
1. Eligibility for concessional rate of duty under Notification No. 29/2004-C.E., dated 9-7-2004.
2. Correct method of calculating duty liability.
3. Imposition of penalty under Rule 25 of Central Excise Rules, 2002.

Issue-wise Detailed Analysis:

1. Eligibility for Concessional Rate of Duty:
The primary issue was whether the appellants were eligible for the concessional rate of duty at 8% as per Notification No. 29/2004-C.E., dated 9-7-2004. The appellants manufactured Partially Oriented Yarn (POY) from polyester chips and texturised yarn from such POY. They also procured POY from outside and subjected it to texturising in their factory. They claimed the concessional rate on the ground that they did not have facilities for the manufacture of organic polymers by polymerization or chemical transformation of natural polymers.

The Tribunal examined the relevant entry in the Notification, which stated that the concessional rate is available to filament yarns produced by a manufacturer who does not have the facilities in his factory for the manufacture of filament yarns of Chapter 54. The explanation provided the meaning of "manufacture of yarns" as the manufacture of filaments of organic polymers produced by either polymerization of organic monomers or chemical transformation of natural organic polymers.

The appellants argued that they did not produce organic polymers and thus were eligible for the exemption. However, the Commissioner contended that the appellants had facilities to manufacture filaments from organic polymers (PET chips), which were produced by polymerization of organic monomers. The Tribunal agreed with the Commissioner's interpretation that the manufacture of filaments of organic polymers should be read together, and if the assessee had the facility to produce filaments from organic polymers, they would not be eligible for the exemption. The Tribunal found considerable force in the Commissioner's order and concluded that the appellants were not eligible for the benefit of Notification No. 29/2004-C.E., dated 9-7-2004.

2. Correct Method of Calculating Duty Liability:
The appellants submitted that if they were held ineligible for the exemption, the duty should be calculated by treating the total realization amount for the sale of texturised yarn as cum-duty price. The Tribunal agreed with this view and remanded the matter to the Commissioner for recalculating the duty liability afresh, treating the sale price as cum-duty price.

3. Imposition of Penalty:
The Commissioner imposed a penalty under Rule 25 of Central Excise Rules, 2002, for contravention of the Rules, as the appellants failed to correctly assess and pay the duty. However, the Tribunal found that the appellants had intimated the Central Excise department about their eligibility for the concessional rate on 18-4-2005, and there was correspondence between the department and the assessee. The Tribunal noted that the issue was contentious and the interpretation given by the appellants could not be considered perverse or given with a mala fide intention. Therefore, the Tribunal set aside the penalties imposed on the appellants.

Conclusion:
The Tribunal upheld the Order-in-Original regarding the ineligibility of the appellants for the benefit of Notification No. 29/2004-C.E., dated 9-7-2004, set aside the penalties, upheld the demand of interest, and remanded the matter to the Commissioner for recalculating the duty liability treating the sale price as cum-duty price.

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