1989 (10) TMI 145 - AT - Central Excise

Summary

Issues:
- Duty and penalty levied under the Central Excises and Salt Act, 1944 on alleged clandestine removal of tread rubber without payment of duty.
- Applicability of Small Scale Industries Exemption Notification.
- Calculation of duty based on Sulphur consumption.
- Uniform rate of duty applied for the entire period of alleged clandestine removal.
- Validity of show cause notice served more than five years prior to the duty levy period.

Analysis:
The appeal before the Appellate Tribunal CEGAT, MADRAS challenged the order of the Collector of Central Excise, Cochin, imposing duty and penalty under the Central Excises and Salt Act, 1944 for alleged clandestine removal of tread rubber without payment of duty. The appellants, manufacturers of tread rubber, contended that the duty calculation based on Sulphur consumption was flawed. They argued for the benefit of the Small Scale Industries Exemption Notification, citing precedents like the Atlas Radio and Electronics Pvt. Ltd. case and the Daya Ram Metal Works Pvt. Ltd. case. The appellants also questioned the uniform rate of duty applied and the validity of the show cause notice served more than five years before the duty levy period.

The learned Consultant for the appellants highlighted that the duty calculation did not consider the applicability of various Small Scale Industries Exemption Notifications, which could impact the duty liability. The Tribunal acknowledged this lapse in the impugned order and emphasized the importance of assessing the appellants' eligibility for exemption notifications before quantifying duty. Referring to the Atlas Radio Electronics Pvt. Ltd. case, the Tribunal clarified that the concessional rate in exemption notifications is not contingent on prior disclosure of manufacturing activity to the Department. As the issue of exemption notifications was crucial and not addressed in the impugned order, the Tribunal set aside the order and remanded the matter for re-consideration by the lower authority in line with legal provisions and the arguments presented.

In response, the learned D.R. contended that a comprehensive evaluation of the Small Scale Industries Exemption Notifications and other pleas should be conducted by the adjudicating authority, urging a remand for further consideration. The Tribunal agreed with the necessity of examining the exemption notifications' applicability and directed the lower authority to re-evaluate the issue in light of the appellants' contentions and the evidence on record. The Tribunal emphasized the need for a thorough review of the exemption notifications and their potential impact on the duty liability before reaching a final decision. Consequently, the appeal was remanded for a detailed reconsideration by the adjudicating authority in accordance with legal principles and the Tribunal's observations.