2015 (10) TMI 1218 - AT - Central Excise

Duty demand - Clearance of free supplies to the wholesale dealers and the distributors - Evasion of duty - Penalty u/s 11AC - Held that - Commissioner (Appeals) passed the order following the decision of the Tribunal in the case of Vinayaka Mosquito Coil Manufacturing Co. Vs CCE Bangalore - 2004 (8) TMI 179 - CESTAT BANGALORE . The Larger Bench of the Tribunal in the case of Indica Laboratories Pvt.Ltd Vs CCE Ahmedabad 2007 (5) TMI 19 - CESTAT, AHMEDABAD held that the decision of the Tribunal in the case of Vinayaka Mosquito Coil Manufacturing Co. (supra) has not enunciated the correct position of law. It has been held that the sale is not the necessary condition for charging to Excise duty. Duty becomes payable (unless otherwise exempted) in respect of every removal of excisable goods. - we set aside the order passed by the Commissioner (Appeals) and uphold the demand of duty alongwith interest and set aside the penalty. - Decided partly in favour of assessee.

Summary

Issues:
Appeal against Commissioner (Appeals) order setting aside Adjudication order regarding duty on Pharmaceutical items under Section 4A of the Central Excise Act, 1944 for free supplies to wholesale dealers and distributors without paying Excise duty.

Analysis:

1. Issue of Duty Payment on Pharmaceutical Items:
The appeal was filed by the Revenue against the Commissioner (Appeals) order setting aside the Adjudication order related to the clearance of Pharmaceutical items by the Respondents. The Respondents were paying duty on Maximum Retail Price (MRP) under Section 4A of the Central Excise Act, 1944. The dispute arose from the clearance of free supplies to wholesale dealers and distributors without paying any Excise duty. The Adjudicating authority confirmed the duty demand, interest, and imposed a penalty equal to the duty amount. However, the Commissioner (Appeals) set aside the Adjudication order.

2. Interpretation of Legal Precedents:
The Commissioner (Appeals) based the order on the decision of the Tribunal in the case of Vinayaka Mosquito Coil Manufacturing Co. Vs CCE Bangalore - 2004, which was further challenged. The Larger Bench of the Tribunal in the case of Indica Laboratories Pvt. Ltd Vs CCE Ahmedabad held that the earlier decision did not correctly interpret the law. It clarified that duty becomes payable for every removal of excisable goods, regardless of whether a sale occurs. This interpretation was crucial in determining the duty liability in the present case.

3. Penalty Imposition and CENVAT Credit:
The Advocate for the Respondents argued that there was no intention to evade duty payment, and the issue had been settled by the Larger Bench. He relied on the decision in the case of Espee Formulation Pvt. Ltd. Vs CCE Rajkot to support his argument against the imposition of penalty under Section 11AC of the Central Excise Act, 1944. Additionally, he requested the extension of CENVAT Credit benefits. The Tribunal considered these arguments and decided to set aside the penalty while upholding the duty demand and interest. The Adjudicating authority was directed to re-quantify the duty demand after verifying the CENVAT Credit eligibility in compliance with the law.

4. Final Decision and Order:
Ultimately, the Tribunal allowed the appeal filed by the Revenue, setting aside the Commissioner (Appeals) order and upholding the duty demand along with interest. The penalty was revoked, and the Adjudicating authority was instructed to re-calculate the duty demand after verifying the CENVAT Credit eligibility. This comprehensive analysis of the issues involved in the legal judgment highlights the key arguments, legal interpretations, and the final decision rendered by the Tribunal.