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2017 (2) TMI 151 - AT - Central ExciseSSI exemption - Leather manufactured by appellant was attracting nil rate of duty. During the period from 01.04.2003 to 20.08.2003 value of clearance at nil rate of duty happened to be ₹ 12,34,763.98/-. Therefore, it appears to revenue that the appellant was not entitled to said exemption under N/N. 08/2003 with effect from 01.04.2003 - demand of duty with penalty u/r 25 - Held that - the confirmation of demand in the said Original Order is as per law - However, the duty was deposited much before the issuance of SCN. Therefore, intentions to evade duty do not get establish. In view of that the penalty imposed through the Order-in-Original under Rule 25 of Central Excise Rules, 2002 set aside - appeal disposed off - decided partly in favor of assessee.
Issues:
- Appeal against Order-in-Appeal No. 92-CE/APPL/KNP/2009 dated 23/04/2009 - Exemption under Notification No. 08/2003 dated 01.03.2003 - Amendment by Notification No. 30/2003-CE dated 01.04.2003 - Demand of Central Excise duty - Imposition of penalty under Rule 25 of Central Excise Rules, 2002 - Challenge to the validity of Notification No. 08/2003-CE - Deposit of duty before show cause notice issuance - Decision on penalty imposition Analysis: The appeal was filed against Order-in-Appeal No. 92-CE/APPL/KNP/2009 dated 23/04/2009 passed by the Commissioner of Central Excise & Customs (Appeals), Kanpur. The appellant was availing exemption under Notification No. 08/2003 dated 01.03.2003 meant for small-scale manufacturers. However, Notification No. 30/2003-CE dated 01.04.2003 amended Notification No. 08/2003-CE, affecting the aggregate value of clearances for the previous year, including clearances at nil rate of duty. The appellant, engaged in manufacturing leather products, attracted nil rate of duty. A show cause notice was issued on 13.02.2004 demanding Central Excise duty of &8377; 1,19,614/-, leading to the imposition of a penalty under Rule 25 of Central Excise Rules, 2002 through Order-in-Original No.52/Dem/ACK-III/08 dated 28.11.2008. The appellant's appeal before the Commissioner (Appeals) was dismissed, prompting the appeal before the Tribunal. The appellant argued that a clarification by the Central Board of Excise and Customs on 06.08.2003 stipulated the inclusion of the value of clearances of exempted goods, including nil rate of excise duty from the preceding financial year, for availing the SSI exemption. The appellant also mentioned depositing &8377; 02 Lakhs towards duty on 27.08.2003 and challenging the validity of Notification No. 08/2003-CE through a writ petition before the Hon'ble Allahabad High Court, which was dismissed on 23.11.2007. The appellant contended that duty was deposited before the show cause notice issuance, arguing against the penalty imposition. After considering the arguments and the High Court's order dated 23.11.2007, the Tribunal upheld the confirmation of demand in the Original Order but acknowledged that duty was deposited prior to the show cause notice. Consequently, the Tribunal set aside the penalty imposed under Rule 25 of Central Excise Rules, 2002. The Order-in-Original was modified accordingly, and the appeal was partially allowed.
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