1999 (12) TMI 192 - AT - Central Excise

Issues Involved:
1. Waiver of pre-deposit of duty and penalty.
2. Eligibility of metallic yarn for exemption under Notification No. 76/86-C.E.
3. Alleged failure to take necessary registration and file required documents.
4. Allegations of wilful contravention of Central Excise Rules.
5. Invocation of extended period of limitation.
6. Adherence to principles of natural justice.
7. Classification of metallic yarn as handicraft.
8. Prima facie case and financial hardship.

Issue-wise Detailed Analysis:

1. Waiver of Pre-deposit of Duty and Penalty:
The applicant sought waiver of the pre-deposit of duty amounting to Rs. 80,22,475/- plus Rs. 12,03,372/- and a penalty of Rs. 92,25,846/-. The Tribunal directed the applicant to make a pre-deposit of Rs. 40 lakhs within two months, subject to which the pre-deposit of the balance amount of duty and penalty would be waived, and recovery stayed.

2. Eligibility of Metallic Yarn for Exemption under Notification No. 76/86-C.E.:
The applicant claimed that their metallic yarn should be classified as handicraft and thus be eligible for exemption under Notification No. 76/86-C.E. The Board Circular dated 25-4-1988 and subsequent clarifications were referenced, which indicated that certain types of zari items made from duty-paid metallized polyester film could be considered handicrafts. However, the department doubted this classification and denied the exemption.

3. Alleged Failure to Take Necessary Registration and File Required Documents:
The applicant was accused of failing to take registration under Rule 174, failing to file classification and price lists under Sections 173B and 173C, and failing to account for goods in statutory records under Rule 173G(1) read with Rule 53 and Rule 226. The goods were allegedly removed without valid Central Excise documents and without determining or paying the duty as required under various rules.

4. Allegations of Wilful Contravention of Central Excise Rules:
The show cause notice alleged wilful contravention of multiple provisions of the Central Excise Rules with deliberate intent to evade payment of duty. This included failing to determine and pay duty before removing goods from the factory and misdeclaring the nature of the goods to claim exemptions.

5. Invocation of Extended Period of Limitation:
The applicant argued that the extended period of five years could not be invoked without specific allegations and reasons in the show cause notice. The Tribunal noted that the show cause notice did allege suppression and misdeclaration with intent to evade duty, justifying the invocation of the extended period under Section 11A of the Central Excise Act.

6. Adherence to Principles of Natural Justice:
The applicant contended that the adjudication order was beyond the scope of the show cause notice and violated principles of natural justice, as they were not given an opportunity to respond to certain grounds. The Tribunal found that the show cause notice and the impugned order had considered all relevant defenses and provided detailed reasoning, thus adhering to principles of natural justice.

7. Classification of Metallic Yarn as Handicraft:
The Tribunal considered whether the metallic yarn met the criteria for classification as handicraft, which required the product to be predominantly made by hand and have a visual appeal in the nature of ornamentation. The Tribunal found that the manufacturing process involved electrically operated machines and did not predominantly involve handwork, thus not fulfilling the criteria for handicraft classification.

8. Prima Facie Case and Financial Hardship:
The applicant claimed a prima facie strong case and argued that they would suffer undue financial hardship if required to pre-deposit the confirmed duty and penalty. The Tribunal acknowledged the arguable nature of the issues but determined that the applicant did not have a prima facie case for exemption and thus required a substantial pre-deposit to proceed with the appeal.

Conclusion:
The Tribunal directed the applicant to pre-deposit Rs. 40 lakhs towards the duty demand within two months, with the balance amount of duty and penalty waived and recovery stayed, subject to compliance. The decision considered the eligibility of the product for exemption, adherence to procedural rules, and principles of natural justice, ultimately finding that the applicant did not have a strong prima facie case for exemption.

← Previous Next →