2018 (2) TMI 1609 - AT - Central Excise

SSI exemption - denial of benefit of Job work - denial on the ground that the appellant had not declared that they were doing job-work - Board Circular No.59/88 dated 28/10/88 and 323/39/97-CX dated 14/07/1997 - Held that - the Commissioner (Appeals) has relied on the circulars issued by the CBEC to grant benefit. It is seen that the said circulars have been issued with reference to the SSI units clearing goods to domestic tariff area and also exporting the goods. The said circular is not applicable to any unit, which is clearing to domestic tariff area only. Thus, the Commissioner (Appeals) has wrongly relied on the said circular. The requirement of declaration under N/N. 214/86, is not a mere facility. The declaration serves the purpose of shifting responsibility on payment of duty from the hob workers to principal manufacturer who undertakes to pay the duty liability in respect of goods. In the absence of the declaration no liability can be fixed on the principal manufacturer. The appellant had not declared that they were doing job work and availing benefit of Notification in the ER-1 returns. Thus, the charge of mis-declaration is clearly established - the matter is remanded to the original adjudicating authority for redetermination of demand - appeal allowed by way of remand.

Issues Involved:
1. Demand of Central Excise duty and imposition of penalty.
2. Exemption under Notification No.214/86, 83/94, and Rule 4 (5) (a) of Cenvat Credit Rules, 2002.
3. Exemption under Notification No.8/2003 for SSI Units.
4. Applicability of CBEC Circulars.
5. Requirement of declaration under Notification No.214/86.
6. Mis-declaration in ER-1 returns.

Issue-wise Detailed Analysis:

1. Demand of Central Excise Duty and Imposition of Penalty:
The appeal was filed by the Revenue challenging the Commissioner (Appeals) order, which set aside the demand for Central Excise duty and the imposition of penalty on the respondent, M/s. Saino Engineering Pvt. Ltd. The original order had recognized that no demand was raised for branded goods cleared to M/s. Reliance Infocomm Ltd. However, it denied exemptions for other clearances due to procedural lapses and mis-declarations.

2. Exemption under Notification No.214/86, 83/94, and Rule 4 (5) (a) of Cenvat Credit Rules, 2002:
The respondent claimed exemptions under these notifications for goods received for job work. The original order denied these exemptions, citing the respondent's failure to file the necessary declaration and undertaking with the proper officer. The Commissioner (Appeals) later condoned the delay in filing these declarations, allowing the exemptions, referencing the Hon'ble Apex Court's decision in Mangalore Chemicals & Fertilizers Ltd., which deemed the declaration a procedural requirement.

3. Exemption under Notification No.8/2003 for SSI Units:
The respondent claimed exemption as an SSI unit under Notification No.8/2003. The original order included the value of branded goods cleared to Reliance Infocomm Ltd. in the first clearance for exemption purposes and denied the exemption, asserting that the respondent had availed Cenvat Credit. The Commissioner (Appeals) overturned this, stating that the value of goods cleared to Reliance Infocomm Ltd. should not be included and that availing Cenvat Credit for branded goods does not bar the exemption under Notification No.8/2003.

4. Applicability of CBEC Circulars:
The Commissioner (Appeals) relied on CBEC Circulars No.59/88 and 323/39/97-CX for granting benefits. The Revenue argued that these circulars pertain to SSI units exporting goods, not those clearing goods to domestic tariff areas, making them inapplicable to the respondent's case. The Tribunal agreed with the Revenue, noting the Commissioner (Appeals) wrongly applied these circulars.

5. Requirement of Declaration under Notification No.214/86:
The Revenue argued that the declaration under Notification No.214/86 is not a mere procedural requirement but shifts the duty liability from the job worker to the principal manufacturer. The Tribunal supported this view, stating that without the declaration, no liability can be fixed on the principal manufacturer, thus distinguishing it from the Mangalore Chemicals & Fertilizers Ltd. case.

6. Mis-declaration in ER-1 Returns:
The original order recorded that the respondent did not declare their job work activities or the availing of exemptions in their ER-1 returns, establishing a charge of mis-declaration. The Tribunal upheld this finding, setting aside the Commissioner (Appeals) decision and remanding the matter to the original adjudicating authority for redetermination of the demand based on these findings.

Conclusion:
The Tribunal found that the Commissioner (Appeals) incorrectly applied CBEC circulars and misinterpreted the requirements under Notification No.214/86. The Tribunal set aside the impugned order and remanded the case for redetermination, emphasizing the procedural and substantive requirements for claiming exemptions and the importance of accurate declarations in ER-1 returns.

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