9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (7) TMI 542 - AT - Central ExciseLevy of Excise Duty - excisable goods or not - Copper anode moulds - captive consumption - marketibility - Levy of Excise duty twice - Cost of Copper Anode Mould having been subsumed in the cost of Copper Anode - Demand of differential duty in respect of the copper anodes cleared during the period July, 2001 to March, 2002 - interest - Penalty u/r 25 of the Central Excise Rules, 2002. Levy of Excise Duty - excisable goods or not - Copper anode moulds - captive consumption - marketibility - HELD THAT - Revenue would have to gather evidence on the question of marketability of the moulds and then issue a fresh SCN, which would altogether be a new proceeding, with implications of time limits on the demand for duty etc adversely affecting Revenue. Hence though the Appellant would not estopped from contesting the excisability of the goods in question, they have to raise it as a fresh issue with the department and cannot ride on the back of the SCN already issued. The cause of the department also deserves fair and equal treatment at our hands. In the larger interest of the administration of justice, we feel that the raising of the mixed question of fact and law at this late stage cannot be permitted. The averments of the appellant on this issue is rejected. Levy of Excise duty twice - Cost of Copper Anode Mould having been subsumed in the cost of Copper Anode - HELD THAT - Considering that the duty paid on inputs causes a cascading effect on the final price of the goods, government had introduced the MODVAT scheme to be later replaced by the CENVAT credit schemes so as to permit set-off of central excise duties paid by manufacturers on the inputs including capital goods purchased by them against the central excise duty payable on the final excisable goods manufactured and cleared by them. The benefit of credit under the schemes were in the nature of a concession given which could be availed only in the manner and in the circumstances mentioned in the respective rules. The Supreme Court has upheld double taxation wherever the legislative intent is clear. In the case of Premier Tyres Ltd. vs. CCE, Cochin 1987 (2) TMI 66 - SUPREME COURT , relating to Central Excise input tax credit, the Supreme Court held that the language of the notification is so clear that it permits a situation where input credit is not allowed, leading to double taxation. In the case of Hind Plastics v. C.C. Bombay 1994 (4) TMI 73 - SUPREME COURT the Supreme Court held that taxing of packing material twice, (once at the rate applicable to the contents and then the rate applicable to the container) which would be the result if the levy on duty to the packing material were not to be exempted would mean double taxation and therefore harsh. But the Court held that even if it is harsh, it is legal. Demand of differential duty in respect of the copper anodes cleared during the period July, 2001 to March, 2002 - HELD THAT - It is found that Tribunal vide its Final Order dated 04.02.2016 had at para 8, determined the assessable value of copper anodes for the period July, 2001 to March, 2002 at Rs. 94,446 MT. It is found from para 2.2 of the OIO dated 30/03/2009 that the composition of copper anode and copper anode mould are one and the same. As per para 14, the appellant have also themselves submitted a combined CAS-4 value in respect of Copper Anode and mould for the period from 01/07/2001 to 31/03/2002, thereby indicating that the value of copper anode and copper anode mould are one and the same. The appellant is agreed upon that the value of copper anode mould for the same period can be accepted as the value per MT of the copper anode mould. Penalty u/r 25 of the Central Excise Rules, 2002 - HELD THAT - The issue pertains to a case where the appellant was clearing the impugned goods on payment of duty. The dispute was relating to the valuation of the goods. The OIO has not been able to establish that the dispute involved intent of the appellant to evade payment of duty. The OIO at para 21 only records that the appellant neither opted for provisional assessment nor adopted the appropriate value hence a penalty was imposable. The Ld. Adjudicating Authority went on to state that he took a lenient view while imposing a penalty due to the complexity involved at arriving at the value. In the circumstances the imposition of penalty needs to be set aside. Interest - HELD THAT - The Hon ble Supreme Court in Commissioner Of Central Excise, Pune Vs M/s SKF India Ltd 2009 (7) TMI 6 - SUPREME COURT held that interest was payable even in a case of short payment of duty which was indeed completely unintended and without any element of deceit etc. Hence interest is leviable on delayed or deferred payment of duty for whatever reasons. The liability gets extinguished only when the statutory payments are made as required by the statute - penalty imposed under Rule 25 of the Central Excise Rules, 2002 is set aside. Appeal allowed.
Issues Involved:
1. Excise duty on copper anode moulds. 2. Double taxation on copper anode moulds and copper anodes. 3. Differential duty valuation. 4. Imposition of penalty under Rule 25 of the Central Excise Rules, 2002. Detailed Analysis: 1. Excise Duty on Copper Anode Moulds: The appellant argued that copper anode moulds are not excisable products as they are not marketable. The moulds were used primarily for captive consumption and occasionally cleared to their Silvassa unit. The department contended that the value declared by the appellant was below the value determined by the Special Audit under Section 14A of the Central Excise Act, 1944. The Tribunal noted that the appellant had acquiesced by paying duty at the time of clearance and did not challenge the excisability earlier. The Tribunal held that the appellant could not raise the issue of marketability at this late stage, as it would disadvantage the Revenue, which had not gathered empirical evidence on marketability due to the appellant's initial acquiescence. The Tribunal rejected the appellant's averments on this issue. 2. Double Taxation on Copper Anode Moulds and Copper Anodes: The appellant contended that the cost of copper anode moulds was subsumed in the cost of copper anodes, and thus, excise duty should not be levied twice. The Tribunal referred to the Apex Court's rulings that double taxation is permissible if explicitly enacted by the legislature. The Tribunal found that excise duty on moulds and anodes did not constitute double taxation, as they are separate excisable products. The Tribunal cited the MODVAT and CENVAT credit schemes, which allow set-off of duties paid on inputs, including capital goods, against duties on final products. The Tribunal upheld the legality of the duty on both moulds and anodes, rejecting the appellant's argument. 3. Differential Duty Valuation: The appellant argued that the differential duty should be confined to Rs. 94,446 per MT, as determined by the Tribunal in its Final Order dated 04.02.2016. The Tribunal agreed, noting that the composition and CAS-4 value of copper anodes and moulds were the same. The Tribunal held that the value of copper anode moulds should be Rs. 94,446 per MT, aligning with the value determined for copper anodes for the same period. 4. Imposition of Penalty under Rule 25 of the Central Excise Rules, 2002: The appellant argued that no penalty should be imposed, citing the Tribunal's Final Order dated 04.02.2016, which waived the penalty in a similar dispute. The Tribunal found that the dispute related to valuation, not an intent to evade duty. The Tribunal noted that the adjudicating authority imposed a penalty due to the appellant's failure to adopt the appropriate value but took a lenient view due to the complexity involved. The Tribunal set aside the penalty, agreeing with the appellant's argument. However, the Tribunal upheld the imposition of interest, citing the Supreme Court's ruling that interest is payable on delayed or deferred payment of duty, regardless of intent. Conclusion: The Tribunal upheld the impugned order with modifications: - The assessable value of copper anode moulds shall be Rs. 94,446 per MT. - Duty and interest shall be recalculated accordingly. - The penalty imposed under Rule 25 of the Central Excise Rules, 2002 is set aside. The appellant is eligible for consequential relief as per law. The appeal is disposed of accordingly.
|
