2015 (9) TMI 1148 - HC - Central Excise

SSI exemption - production of pharmaceuticals as recorded in the RG1 register was not tallying with the production recorded in the laboratory reports - Duty demand u/s 11D - Held that - Commissioner has assumed that in respect of all the clearances, the appellant has collected Excise Duty. If the department makes the allegation that the appellant had collected money representing Excise Duty, then the burden is on the Revenue to prove the same. In view of this position, the Order-in-Original has no merits. We set aside the same but remand the entire matter to the original authority to decide the case de novo after giving an opportunity to the appellant and after observing the principles of natural justice. The de novo order should be decided within four months from the date of this order. As could be seen from the order of the Tribunal, it is clear that the entire burden of proving that the respondent-assessee has collected money representing excise duty rests on the Revenue, but the order-in-original does not disclose that the Department has discharged the burden of proof, as such, the Tribunal was right in remanding the matter to the original authority to reconsider and decide the case on merits. Further, it is to be noticed that during the pendency of this appeal, the respondent-assessee is said to have paid certain amounts which fact is not denied by the Department. Further, in the Order-in-Original itself, the Commissioner had recorded that there is no direct evidence available on record except that certain sale invoices were raised against M/s. A.P.H.M.H.I.D.C. and certain amounts were shown as excise duty. That apart, so far as the invoices raised against M/s. A.P.H.M.H.I.D.C. are concerned, the respondent-assessee paid a sum of ₹ 3.00 lakhs and ₹ 4.50 lakhs vide their branch Challan Nos.04/2003-04 and 05/2003-04 dated 11.02.2004 through State Bank of India and this fact has not been controverted by the Department. - Decided against Revenue.

Summary

Issues:
1. Setting aside of Order-in-Original by CESTAT
2. Burden of proof on Revenue for collection of Excise Duty
3. Consideration of evidence by CESTAT
4. Granting relief to appellant withholding commercial invoices
5. Remanding the matter when facts admitted by appellant

Issue 1: Setting aside of Order-in-Original by CESTAT
The Central Excise Appeal under Section 35G of the Central Excise Act, 1944 was filed by the Department against the Final Order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). The questions raised for adjudication included whether CESTAT was correct in setting aside the Order-in-Original passed by the Commissioner, considering the failure of the party to deposit amounts representing the duty of Excise to the Central Government, as required by Section 11D of the Act.

Issue 2: Burden of proof on Revenue for collection of Excise Duty
Another issue raised was whether CESTAT was right in placing the burden of proving the collection of amounts representing the duty of Excise from customers on the Revenue, especially when certain commercial invoices were intentionally not produced by the party. The Tribunal emphasized that if the Department alleges that the party collected money representing Excise Duty, the burden of proof lies with the Revenue.

Issue 3: Consideration of evidence by CESTAT
CESTAT was also questioned on not considering clear evidence that the party had collected Central Excise duty from a specific buyer, and whether the party was obligated to prove that other buyers were not billed similarly. The Tribunal's decision to remand the matter to the original authority for a fresh decision after observing principles of natural justice was challenged.

Issue 4: Granting relief to appellant withholding commercial invoices
The justification of CESTAT in granting relief to the appellant, who intentionally withheld commercial invoices of other customers, was also a subject of contention. The appellant's intentional withholding of commercial invoices raised concerns about the propriety of granting relief in such circumstances.

Issue 5: Remanding the matter when facts admitted by appellant
Lastly, the decision of CESTAT to remand the matter to the original authority despite the appellant admitting the facts mentioned in the Show Cause Notice was questioned. The remand order was challenged in light of the admitted facts, questioning the necessity of further proceedings.

In the detailed analysis, the High Court observed that the burden of proving the collection of money representing excise duty rested on the Revenue, and the Tribunal rightly remanded the matter for a fresh decision due to the lack of proof by the Department. The Court noted that the respondent-assessee had paid certain amounts during the appeal, and the Tribunal's decision was based on a thorough review of the evidence presented by both parties. The Court emphasized the Tribunal's role as the final fact-finding authority and upheld its findings unless challenged with specific evidence of perversity. Ultimately, the appeal was deemed devoid of merit and dismissed, with no costs awarded.