2015 (4) TMI 892 - AT - Central Excise

Exemption under notification 6/01-CE - Only one unit in working condition - Availment of exemption in respect of closed unit - Held that - Tribunal in the earlier order had held that during the period of dispute, i.e., during period from September, 2001 to 31st March, 2003, the factory of M/s. Shamli was not working and only the goods produced in the factory of M/s. Sikka were being shown to have been manufactured and cleared from the factory of M/s. Shamli. - it is the contention of the appellants that factory of M/s. Shamli was functioning during period of dispute and there is record of production. It has been pleaded that though there was no power connection in the factory of M/s. Shamli there were 2 DG Sets each of 380 KVA each and at the time of officer s visit on 24/4/2003 while one DG Set was in working condition and the other was under repairs. With regard to the purchase of diesel it has been pleaded that the diesel was being purchased from M/s. Dee Cay Traders and was being delivered at their premises under GRs and that in this regard Shri Vinit Kumar of M/s. Super Oils had confirmed the delivery of HSD at the appellant s premises on various occasions. It had been pleaded that the records regarding purchase of raw material and diesel had been recovered from the appellant s premises besides the record regarding payment made to the labour contractors and the details of the tax deducted at source in respect of the payment made to the labour contractors - Some crucial documents had neither been considered by the Commissioner at the stage of the adjudication nor had been considered by the Tribunal, it would be proper to remand this matter to the Commissioner for de-novo adjudication - Decided in favour of assessee.

Summary

Issues Involved:
1. Alleged duty evasion by M/s. Sikka Paper Mills Limited.
2. Functionality and production status of M/s. Shamli Paper Mills.
3. Validity of the exemption claimed under Notification No. 6/01-CE.
4. Recovery of Central Excise Duty and interest.
5. Imposition of penalties on M/s. Sikka, M/s. Shamli, and Shri Vinay Bansal.
6. Non-consideration of grounds and documents in the previous Tribunal order.
7. Requirement for de-novo adjudication by the Commissioner.

Detailed Analysis:

1. Alleged Duty Evasion by M/s. Sikka Paper Mills Limited:
The officers of Central Excise Meerut-I, upon receiving intelligence about duty evasion, visited the unit of M/s. Sikka Paper Mills Limited (M/s. Sikka) and its sister concern M/s. Shamli Paper Mills (M/s. Shamli) on 24/04/2003. The investigation revealed that M/s. Sikka allegedly showed part of its production as that of M/s. Shamli to wrongfully avail the exemption under Notification No. 6/01-CE, exceeding the limit of 3500 MTs in a financial year.

2. Functionality and Production Status of M/s. Shamli Paper Mills:
During the visit, M/s. Shamli's factory was found closed, with indications that it had been non-operational for a long time. There was no power connection, and only one generator was found without records of diesel purchase. The department concluded that M/s. Shamli was not functioning and that M/s. Sikka's production was falsely shown as M/s. Shamli's to avail the exemption.

3. Validity of the Exemption Claimed Under Notification No. 6/01-CE:
M/s. Sikka and M/s. Shamli were availing of the exemption under Notification No. 6/01-CE, which exempts clearances of paper and paperboard up to 3500 MTs in a financial year. The investigation suggested that M/s. Sikka exceeded this limit by showing its production as that of M/s. Shamli, thereby wrongfully claiming the exemption.

4. Recovery of Central Excise Duty and Interest:
A show cause notice dated 25/8/2001 was issued for the recovery of Central Excise Duty amounting to Rs. 68,72,658/- from M/s. Sikka for the period from 18/09/2001 to 31/3/2003, along with interest under section 11AB of the Central Excise Act, 1944.

5. Imposition of Penalties:
Penalties were imposed on M/s. Sikka under section 11AC, on M/s. Shamli under Rule 26 of the Central Excise Rules, 2002, and on Shri Vinay Bansal, Director of both units, under Rule 26 of the Central Excise Rules, 2002. The Commissioner confirmed these penalties in the order-in-original dated 28/10/2005.

6. Non-consideration of Grounds and Documents in the Previous Tribunal Order:
M/s. Sikka, M/s. Shamli, and Shri Vinay Bansal appealed against the Commissioner's order. The Tribunal dismissed the appeals on 15/9/2011 without considering the grounds raised. The Allahabad High Court directed the appellants to seek remedy before the Tribunal, leading to the restoration of the appeals and the supply of non-relied upon documents.

7. Requirement for De-novo Adjudication by the Commissioner:
The Tribunal acknowledged that the documents and grounds raised by the appellants were not considered in the previous adjudication. The Tribunal directed the Commissioner to conduct a de-novo adjudication, considering the non-relied upon documents and allowing cross-examination of officers and witnesses if requested. The impugned order was set aside, and the matter was remanded for fresh adjudication.

Conclusion:
The Tribunal recognized procedural lapses in the previous adjudication and emphasized the need for a thorough re-examination of the evidence and grounds raised by the appellants. The Commissioner is directed to re-adjudicate the matter, ensuring all relevant documents and testimonies are duly considered.