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2023 (8) TMI 420 - AT - Central ExciseExcisability - marketability - pre-laminated boards - Classification of the goods - intermediate goods - captive consumption - - benefit of N/N. 67/1995-CE dated 16th March 1995 denied - extended period of limitation - penalties - HELD THAT - Pre-laminated boards are a convenience to customers substituting for buying board and laminate separately and labouring over the fusing of the two. The shelf life of a store-bought laminate needs necessarily to be more than that intended for consumption in the factory. The threshold of excisability is enumeration in the Schedule to Central Excise Tariff Act, 1985. The description corresponding to tariff item 4811 5900 is paper and paperboard, coated, impregnated or covered with plastics (excluding adhesives) other than bleached, weighing, weighing more than 150mg/m2 and no reason has been adduced by appellant-assessee to suggest that this is not a description of the impugned goods or that a more accurate heading exists. Neither is there a suggestion that it is only adhesive that coats the base paper supplied by appellant to M/s Shri Shankar Vijay Saw Mills. Indeed, the primary claim of the appellant is that the laminate lacks the shelf-life for marketability and hence is not excisable. However, it is on record that the product in question is stored, even if in controlled condition, and is also sent to M/s Pragati Plywood India Pvt Ltd for affixing the laminate on the board. The length of shelf-life is not relevant in these circumstances. The impugned goods are marketable and, hence, excisable. On record are intimations of movement for job work dated 9th April 2003 as prescribed in notification no. 214/86-CE dated 25th March 1986. All the materials are supplied by appellant to the jobworker. The appellant is, thus, the principal manufacturer and they have assumed the liability to pay duty - The claim that the job-worker is liable does not hold. The appellant is no stranger to disputes on leviability of duty on pre-laminated boards. In DARSHAN BOARDLAM LTD. VERSUS UNION OF INDIA 2013 (4) TMI 326 - GUJARAT HIGH COURT , the Hon ble High Court of Gujarat took note of the dropping of proceedings in adjudication held It is declared that the goods manufactured by the petitioner, namely, Bagasse Board, is chargeable to nil rate of duty under Serial No. 82(vi) of Table to Notification No. 6/2006-C.E. Extended period of limitation - HELD THAT - It cannot be a credible claim that appellant was unaware that duty was not leviable on the final product and, thus, rendered intermediate product, entrusted to the job-worker owing to their known capability to produce the laminate, liable to duties of central excise. The plea of bar of limitation also fails. Appeal of Revenue on disposal without pre-deposit - HELD THAT - Any relief for the reasons stated in grounds of appeal would have the effect of nullifying the order to recover duty. Accordingly, that appeal is dismissed as infructuous. Penalty under rule 25 of Central Excise Rules, 2000 - HELD THAT - The other appeal, pertaining to setting aside of penalty under rule 25 of Central Excise Rules, 2000, is misdirected as the Rules cannot enable imposition of penalty for non-payment of duties which transcends the penalties specified in section 11AC of Central Excise Act, 1944. That rule cannot be invoked de hors the action taken under section 11A of Central Excise Act, 1944 and, therefore, all penalties imposed under section 25 of Central Excise Rules, 2000 in the several orders impugned are set aside. Appeal allowed in part.
Issues Involved:
1. Excisability of 'intermediate goods' 2. Marketability of the impugned goods 3. Liability of the principal manufacturer 4. Bar of limitation 5. Disposal without pre-deposit 6. Imposition of penalty under Rule 25 of Central Excise Rules, 2000 Summary: 1. Excisability of 'Intermediate Goods': The appeals challenge the demand of duties on 'intermediate goods' cleared by the appellant from 2003-04 to 2009-10. The adjudicating authority concluded that the chemical treatment on paper at M/s Shri Vijay Shankar Saw Mills constitutes the manufacture of excisable goods under tariff item 4811 5900, not entitled to exemption as per notification no. 67/1995-CE. The Tribunal upheld the demand of duty of Rs. 1,97,62,939 and penalties under section 11A and 11AC of the Central Excise Act, 1944, along with penalties under rule 25 of Central Excise Rules, 1944. 2. Marketability of the Impugned Goods: The Tribunal examined the marketability of the 'intermediate goods' based on the decision in Dunlop India Ltd v. Union of India and found them excisable. The adjudicating authority's reliance on the availability of similar goods through a web search and imports by M/s Decorative Laminates (India) Pvt Ltd was considered. The Tribunal emphasized the necessity of marketability for excisability, referencing several Supreme Court judgments, including Union of India v. Delhi Cloth & General Mills Co Ltd and Bata India Ltd v. Commissioner of Central Excise. 3. Liability of the Principal Manufacturer: The Tribunal held that the appellant, as the principal manufacturer, is liable for duty. The appellant's claim that the job-worker should bear the duty liability was rejected. The Tribunal referred to notification no. 214/86-CE and noted that the appellant had supplied all materials to the job-worker and assumed the liability to pay duty. 4. Bar of Limitation: The Tribunal dismissed the appellant's plea of the bar of limitation, citing the appellant's awareness of duty leviability on the final product, as noted in the Gujarat High Court's decision in Darshan Boardlam Ltd v. Union of India. 5. Disposal without Pre-deposit: The Tribunal dismissed the Revenue's appeal against the disposal of appeals without pre-deposit, stating that any relief would nullify the order to recover duty. 6. Imposition of Penalty under Rule 25 of Central Excise Rules, 2000: The Tribunal set aside penalties imposed under rule 25 of Central Excise Rules, 2000, as the rule cannot enable penalties for non-payment of duties beyond those specified in section 11AC of the Central Excise Act, 1944. Conclusion: The impugned orders were modified to the extent of setting aside penalties under rule 25 of Central Excise Rules, 2000. The Tribunal upheld the orders of the lower authorities in all other respects. (Order pronounced in the open court on 13/07/2023)
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