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2013 (8) TMI 721 - AT - Central ExciseSSI Exemption Notification No.8/2003 - Determination of Turnover Clubbing of turnover of goods manufactured by loan licence or job worker - Waiver of Pre-deposit - manufacture of Ophthalmic and liquid orals (medicaments) - Difference of opinion. Matter referred to larger bench with the issue, Whether in the facts and circumstances of the case, the appellant have prima facie case in their favour warranting waiver of pre-deposit under Section 35F?
Issues Involved:
1. Clubbing of clearances for SSI exemption. 2. Eligibility for SSI exemption for the years 2007-2008 and 2008-2009. 3. Requirement of pre-deposit of duty demand, interest, and penalty. Issue-wise Detailed Analysis: 1. Clubbing of clearances for SSI exemption: The primary issue revolves around whether the clearances made by the appellant's unit at Allahabad should be clubbed with the clearances of the goods manufactured under loan license agreements/job work agreements through various manufacturers for determining their eligibility for SSI exemption. The Department argued that the arrangement between the appellant and MARCK indicated that the appellant was the owner of the raw materials and finished goods, and therefore, the clearances should be clubbed. The appellant contended that the goods manufactured under loan license agreements were cleared by respective manufacturers on payment of duty and should not be included in their clearances. The Commissioner (Appeals) upheld the clubbing of clearances based on para 4.2 of Chapter 2 of the CBEC Excise Manual of supplementary instructions. 2. Eligibility for SSI exemption for the years 2007-2008 and 2008-2009: The Department's view was that the appellant exceeded the Rs.4 Crore threshold for SSI exemption during 2007-2008, making them ineligible for SSI exemption in 2008-2009. The appellant argued that the difference between the value of clearances in the balance sheet and the ER-I Returns was due to the inclusion of goods manufactured under loan license agreements, which should not be clubbed with their own clearances. The original adjudicating authority and the Commissioner (Appeals) did not accept this plea, leading to the demand for differential duty amounting to Rs.18,54,000/- for 2008-09, later reduced to Rs.12,36,000/- by the Commissioner (Appeals). 3. Requirement of pre-deposit of duty demand, interest, and penalty: The Tribunal was divided on whether the appellant had a prima facie case warranting waiver of pre-deposit. The judicial member directed the appellant to deposit Rs.6,00,000/- within four weeks, while the technical member disagreed, stating that the appellant had a strong prima facie case and that insisting on pre-deposit would cause undue hardship. The technical member highlighted that the provisions for clubbing clearances under the SSI exemption notification No.8/2003-CE did not apply to the appellant's case, as the clearances of goods manufactured by different manufacturers in different premises should not be aggregated. Separate Judgments Delivered: The judicial member and the technical member delivered separate judgments due to their differing opinions. The judicial member directed a pre-deposit of Rs.6,00,000/-, while the technical member waived the requirement of pre-deposit, citing a strong prima facie case in favor of the appellant. The matter was referred to the Hon'ble President for constituting a Bench under Section 129C(5) of the Customs Act, 1962, to resolve the difference of opinion on whether the appellant had a prima facie case warranting waiver of pre-deposit. Conclusion: The Tribunal's judgment involves complex issues of clubbing of clearances, eligibility for SSI exemption, and the requirement of pre-deposit. The judicial member and the technical member had differing views, leading to a referral to the Hon'ble President for a final decision. The appellant's argument centered on the non-clubbing of clearances under loan license agreements, while the Department maintained that such clearances should be aggregated for determining SSI exemption eligibility.
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