2009 (9) TMI 403 - AT - Central Excise

Manufacture- Notification No. 58/03- A show cause notice was issued by the Revenue to the appellant requiring to show cause as to why exemption should not be denied to them since the conditions in the Notification No. 58/03-C.E, have not been fulfilled. Besides demand of duty with interest, penalty was also proposed under Section 11AC of CEA, 1944. The Commissioner in the impugned order also negated the claim of the appellant that there was no manufacture of the goods in the factory and the goods manufactured by them were not at all excisable and held that if the exemption under Notification No. 58/03 was not available, they were liable to pay the Excise duty on the goods. Held that- we find that the appellant had a bona fide belief that they were eligible for exemption and therefore cleared the goods under Notification No. 58/03. Subsequently, when the show cause notice was issued, they have tried to claim that the goods were not excisable. Basically, the dispute involves interpretation of law and applicability of exemption notification and therefore we find that there is no justification for imposition of penalty under Section 11AC of CEA, 1944. We also find that the claim of the appellant for Cenvat credit should have been considered by the Commissioner and therefore, we direct that the appellants may be given the benefit of Cenvat credit admissible subject to production of necessary documents. We also allow the claim for treatment of price charged by the appellant as cum-duty-price. Appeal is partially allowed in above terms.

Issues Involved:
1. Eligibility for exemption under Notification No. 58/03-C.E.
2. Classification and excisability of the goods.
3. Imposition of penalty under Section 11AC of CEA, 1944.
4. Entitlement to Cenvat credit and treatment of price as cum-duty-price.

Detailed Analysis:

1. Eligibility for Exemption under Notification No. 58/03-C.E.
The appellant, M/s. Prem Fabricators, claimed exemption from Central Excise duty under Notification No. 58/03-C.E. for goods supplied to Central Warehousing Corporation (CWC) located in SEZ. The Revenue issued a show cause notice arguing that the conditions of the notification were not fulfilled, specifically conditions (ii) and (iii) which required the goods to be supplied against a bill of export and submission of proof of export. The Assistant Commissioner confirmed that there was no SEZ unit named 'CWC Kandla' functioning in Mundra, thus disqualifying the appellant from the exemption.

2. Classification and Excisability of the Goods
The appellant contended that the goods were not manufactured but merely processed steel sheets that were later assembled at the CWC site. The Commissioner, however, found that the goods were indeed manufactured and classifiable under CETH 7308, making them liable for duty. The Commissioner relied on ARE-1 forms and commercial invoices which described the goods as "columns, portal, canopy, truss," contradicting the appellant's claim. The Tribunal upheld this finding, noting that the work orders and invoices were consistent and did not indicate fabrication at the site.

3. Imposition of Penalty under Section 11AC of CEA, 1944
The Commissioner imposed a penalty equal to the duty amount under Section 11AC of CEA, 1944. The Tribunal, however, found that the appellant had a bona fide belief that they were eligible for the exemption and that the dispute involved interpretation of law and applicability of the exemption notification. Consequently, the Tribunal held that there was no justification for imposing the penalty.

4. Entitlement to Cenvat Credit and Treatment of Price as Cum-duty-price
The appellant argued that they were entitled to Cenvat credit for the duty paid on raw materials and that the price should be treated as cum-duty-price. The Commissioner had denied these claims. The Tribunal directed that the appellant should be given the benefit of Cenvat credit subject to the production of necessary documents. Additionally, the Tribunal allowed the claim for treating the price charged by the appellant as cum-duty-price.

Conclusion
The Tribunal upheld the Commissioner's decision regarding the classification and excisability of the goods but set aside the imposition of penalty under Section 11AC of CEA, 1944. The Tribunal also directed that the appellant be allowed Cenvat credit and the treatment of the price as cum-duty-price. The appeal was partially allowed in these terms.

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