2007 (8) TMI 239 - AT - Central Excise

Brand name/logo of foreign collaborator not used & not derive any benefit of using another s brand name, so not hit by bar u/s 1/93 SSI exemption available installation exp. incurred after mfg. & clearance so not includible in AV penalty for clandestine removal will be quantified in remand

Issues Involved:

1. Eligibility for SSI exemption under Notifications No. 1/93 and 9/99.
2. Alleged undervaluation of goods by excluding installation charges.
3. Clearance of excisable goods without payment of duty.
4. Removal of credit availed inputs without expunging the credit.
5. Taking credit without duty-paying documents.
6. Failure to reverse credit relatable to stock of inputs.

Detailed Analysis:

1. Eligibility for SSI Exemption:
The primary issue was whether IGPL was eligible for SSI exemption under Notifications No. 1/93 and 9/99. The Commissioner initially denied the exemption, arguing that IGPL used the brand name of its foreign collaborator, GIPL, which amounted to suppression of material facts. The Commissioner relied on the decision in CCE Vs Rathna Industries. However, upon appeal, it was found that IGPL did not use the brand name or logo of GIPL but affixed its own logo and details on its products. The Tribunal concluded that IGPL did not derive any benefit from using another's brand name and was, therefore, eligible for SSI exemption. The demand on the ground of using another's brand name was deemed unsustainable.

2. Alleged Undervaluation of Goods by Excluding Installation Charges:
The Commissioner had initially included excess installation charges collected by IGPL in the assessable value, treating them as additional consideration. However, the Tribunal found that installation charges, being post-manufacture expenses, were not includible in the assessable value. The demand for duty on differential installation charges was not backed by a proposal in the Show Cause Notice and was thus unsustainable. The appeal regarding IGPL's eligibility to SSI benefit and liability to duty on differential installation charges was allowed.

3. Clearance of Excisable Goods Without Payment of Duty:
IGPL was found to have removed goods for replacement or exhibition without payment of duty. The Commissioner accepted IGPL's plea that most items were bought out and not manufactured, but did not grant full relief. The Tribunal directed the adjudicating authority to re-examine the demand, considering goods received before IGPL's registration and items on which credit had not been availed. The liability for duty on these goods was to be re-quantified, allowing abatement as per Section 4(4)(d)(ii) of the Central Excise Act.

4. Removal of Credit Availed Inputs Without Expunging the Credit:
The Commissioner demanded duty on inputs removed without reversing the credit. IGPL argued that no Modvat credit had been availed on certain items. The Tribunal directed a fresh examination to ascertain the duty liability accurately, considering the inputs' status and the relief due.

5. Taking Credit Without Duty-Paying Documents:
IGPL had taken credit in their RG23A during March 1999 without duty-paying documents, contravening Rule 57Q. The Tribunal did not provide specific details on this issue but implied that the adjudicating authority should re-examine IGPL's claims and the supporting documents to ascertain the correct duty liability.

6. Failure to Reverse Credit Relatable to Stock of Inputs:
IGPL failed to reverse the credit relatable to the stock of inputs as per Rule 57H(7) and misdeclared the stock. The Commissioner granted partial relief, but the Tribunal directed a fresh examination to ensure the correct proportionate credit was disallowed, considering the inputs' status and the relief due.

Conclusion:
The Tribunal allowed IGPL's appeal, setting aside the impugned order and remanding the case to the adjudicating authority for fresh examination. The adjudicating authority was directed to re-quantify the duty liability, allowing appropriate abatements and credits, and to decide the penal liability afresh. The Revenue's appeal was dismissed. The assessee was to be afforded a reasonable opportunity of being heard before the issues were re-adjudicated.

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