2022 (2) TMI 91 - HC - Central Excise

Demand for the relevant goods in the financial years 2003-04, 2004-05 and 2005-06 - shortly after the demand was made, the appellant paid the entire quantum of duty that it perceived to be due by February 27, 2007, including interest, and claimed that no further sum was due - HELD THAT - Ordinarily, a demand can be raised by the department within a year of the duty becoming payable. However, in special cases, when the department perceives and it is able to demonstrate that an earlier demand could not be paid since the manufacturer intended to evade excise duty, the period of limitation would stretch to five years. Apropos such ground, it is the contention of the appellant that since the appellant set up its manufacturing unit in the North-East and was entitled to complete exemption or refund pursuant to the notification No.32/1999 dated July, 8 1999, there could never have been any intention on its part to evade excise duty since whatever it may have paid it would have recovered in terms of the notification of 1999. SSI Exemption - use of brand name of other person - Gulab brand - N/N. 8/2003 dated March 1, 2003 - appellant has been insisting from the stage of its reply to the show-cause notice of April 4, 2008 that the Gulab brand which has been manufactured by the appellant has been only on and after December 1, 2006 and for the period prior to December 1, 2006 it was not manufacturing its product under any brand name - HELD THAT - Since a stand was taken by the appellant immediately upon receipt of the show-cause notice that it commenced manufacturing the relevant goods under the Gulab name only subsequent to December 1, 2006, the onus was on the department to prove otherwise in the event the department sought to establish that the appellant would not be entitled to the benefit under the SSI unit scheme of March 1, 2003 prior to December 1, 2006. Prima facie, the department appears to have come short on such count. However, in the absence of appropriate notification that was applicable at the relevant time pertaining to the exemption of excise duty for goods manufactured by units set up in the North-East, the matter cannot be concluded. Let the matter appear in the first week of February, 2022 as requested by the parties - List on February 2, 2022.

Summary

Issues:
Challenge to Tribunal's order on excise duty exemption for manufacturing units in North-East, dispute over SSI unit exemption eligibility based on turnover, demand for excise duty for past financial years, denial of SSI unit benefit for manufacturing under another brand name, burden of proof on department regarding brand name manufacturing, absence of relevant notification for exemption.

Analysis:
The case involves a challenge to an order of the Tribunal regarding excise duty exemption for manufacturing units in the North-East. The appellant started manufacturing goods in 2002-2003 and initially qualified for Small Scale Industries (SSI) unit exemption as turnover was below ?1 crore. However, turnover exceeded the limit for the next three financial years. The appellant inquired about excise duty applicability in 2006, leading to a demand in 2007, which was paid promptly.

Regarding the demand for excise duty for previous years, the department issued a show-cause notice in 2008. The appellant argued that being entitled to complete exemption or refund under a specific notification, there was no intention to evade duty. The appellant also contested the denial of SSI unit benefit for manufacturing under a different brand name, claiming the brand was adopted after a specific date.

The order-in-original referred to statements from individuals regarding the brand name manufacturing. While a customer claimed goods were always under the brand name, the directors did not confirm this before a certain date. The burden of proof was on the department to disprove the appellant's claim regarding brand name manufacturing, which seemed unfulfilled.

However, the case couldn't be concluded due to the unavailability of the relevant notification for excise duty exemption for units in the North-East. The matter was scheduled for February 2022 for further proceedings. The judgment highlights the complexities of excise duty exemptions, SSI unit benefits, burden of proof, and the significance of relevant notifications in legal proceedings.