2022 (8) TMI 1098 - AT - Central Excise

Area Based Exemption - new products which were manufactured/added by the appellant after the cut-off date i.e. 31.03.2010 - benefit of N/N. 50/2003-CE dated 10.06.2003 - fulfilment of conditions of the Exemption Notification or not - HELD THAT - It would be seen from the Circular dated 22.12.2010 regarding the scope of Notification dated 10.06.2003 that the provisions of the Notification dated 10.06.2003 do not place a bar or restriction on any addition/modification in the plant or machinery or on the production of new products by an eligible Unit after the cut-off date and during the exemption period of ten years. In all such cases, the benefit of the excise duty exemption under the Exemption Notification would continue to be available to an eligible industrial Unit, though, the period of exemption would remain to be ten years. In the present case, the appellant had set up new plant and machinery for manufacture of new products and, therefore, the appellant was eligible to avail the exemption for the residual period on the new products also. The appellant had not set up a new Unit and there was only a diversification of production capacity by adding new machines. The old products were continued to be manufactured, in addition to the new products. The fact that the investment for the new products was very large and the percentage of production of the new product was also very large cannot be made a ground to deny the benefit of the Exemption Notification dated 10.06.2003 to the appellant - In the present case, neither there was a charge in the show cause notice nor there is a finding in the impugned order that the old products and the new products had separate manpower or finances. It has, therefore, to be considered as a single Unit. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Eligibility of the appellant to avail the benefit of exemption from duty under Notification No. 50/2003-CE dated 10.06.2003 for new products manufactured after the cut-off date of 31.03.2010.
2. Interpretation and applicability of the CBEC Circulars dated 22.12.2010 and 09.05.2016.
3. Determination of whether the appellant set up a new unit or merely diversified/enhanced production capacity.
4. Validity of the demand for duty, interest, and penalty imposed by the Commissioner.

Detailed Analysis:

1. Eligibility for Exemption under Notification No. 50/2003-CE:
The appellant, M/s. Wipro Enterprises Pvt. Ltd. (Unit-II), challenged the order dated 03.02.2021 by the Commissioner, CGST, Shimla, which denied the benefit of exemption from duty under Notification No. 50/2003-CE for new products manufactured after 31.03.2010. The Commissioner confirmed a demand of Rs. 6,28,16,499/- with interest and penalty, stating that the new products were not eligible for exemption as they were manufactured after the cut-off date.

2. Interpretation and Applicability of CBEC Circulars:
The appellant argued that they complied with the conditions of the Exemption Notification and acted according to CBEC Circulars dated 22.12.2010 and 17.02.2012. The Circulars clarified that the Notification did not restrict the addition/modification of plant or machinery or the production of new products by an eligible unit after the cut-off date. The Department, however, relied on a subsequent Circular dated 09.05.2016, which stated that the exemption was intended to assist bona fide needs and not to allow the installation of a new unit under the guise of enhancement or diversification of production capacity.

3. Determination of New Unit vs. Diversification/Enhancement:
The adjudicating authority concluded that the appellant established a new unit for manufacturing new products post cut-off date, thus not eligible for the exemption. However, the appellant contended that they merely diversified/enhanced production capacity by adding new machinery, continuing to manufacture old products alongside new ones. The Tribunal noted that the appellant's actions aligned with the Circular dated 22.12.2010, which allowed for the production of new products during the exemption period without extending the exemption period beyond ten years.

4. Validity of Demand, Interest, and Penalty:
The Tribunal found that the appellant satisfied the conditions of the Exemption Notification, as the goods were specified in the schedules to the Tariff Act, did not appear in Annexure-I, and were cleared from a unit located in the specified industrial sectors. The Tribunal also noted that the appellant's unit commenced commercial production before the cut-off date, fulfilling the Notification's requirements. The reliance on the Circular dated 09.05.2016 by the Department was deemed misplaced, as the appellant did not set up a new unit but diversified production capacity.

Conclusion:
The Tribunal concluded that the appellant was entitled to the exemption for the new products manufactured post cut-off date, as they complied with the conditions of the Exemption Notification and the clarifications provided by the CBEC Circulars. The impugned order dated 03.02.2021 was set aside, and the appeal was allowed, thereby invalidating the demand for duty, interest, and penalty imposed by the Commissioner.

Order:
The appeal is allowed, and the impugned order dated 03.02.2021 is set aside. (Order Pronounced on 23.08.2022)