2017 (3) TMI 1435 - AT - Central Excise

100% EOU - SSI exemption - clandestine removal - duty paying documents - parallel/fake invoices - Held that - it appears that parallel invoice books were found during the course of search. The authorised signatory had admitted that the goods were cleared on the basis of invoices which do not contain the printed serial number. Thus, it is established that it is a case of clandestine removal. Regarding the 100% EOU sales, it appears that the assessee-Appellants have not followed the procedure and condition laid down in the N/N. 22/2003-CE of procuring CT-3 certificate. Hence, the assessee-Appellants are not eligible for the deduction under EOU. Inasmuch as the assessee-Appellants did not follow the CT-3 procedure, the goods will have to be included in the threshold limit of SSI Exemption. Inclusion of job-work in the threshold limit of SSI exemption - Held that - appellants have failed to show that the goods claimed to be cleared by them for job work have not been further used in the manufacture of dutiable goods. Hence, the lower authorities have rightly denied the benefit of exemption under the N/N. 214/86. Extended period of limitation - penalty - Held that - The assessee-Appellants did not disclose to the Department that their clearances have crossed the exemption limit and also used the parallel invoices for the clandestine clearance to keep the turnover within the prescribed limit. Under these circumstances, we are of the view that the extended period of limitation was rightly invoked and penalties were correctly imposed. Appeal dismissed - decided against appellant-assessee.

Summary

Issues:
1. SSI exemption eligibility for the assessee-Appellants.
2. Eligibility for deduction under 100% EOU sales.
3. Invocation of extended period.
4. Inclusion of job work turnover in SSI exemption threshold.
5. Allegations of clandestine removal.
6. Limitation period for the demand.

Analysis:

SSI Exemption Eligibility:
The appeal concerns the denial of SSI exemption to the assessee-Appellants for the financial years 2003-04 and 2004-05 due to non-registration. The contention raised was that the turnover did not exceed the prescribed limit, and the exemption was wrongly denied. However, the Tribunal found that the assessee-Appellants did not obtain the registration certificate, leading to the denial of the SSI exemption.

100% EOU Sales Deduction:
The Tribunal examined the compliance of the assessee-Appellants with the conditions for 100% EOU sales deduction. It was observed that the assessee-Appellants failed to follow the procedure of procuring CT-3 certificate, rendering them ineligible for the deduction. A comparison with a relevant case law highlighted the non-fulfillment of conditions, leading to the rejection of the benefit of 100% EOU sales deduction.

Invocation of Extended Period:
The issue of the extended period was raised by the counsel for the assessee-Appellants, arguing that the demand was time-barred. However, the Tribunal upheld the invocation of the extended period, considering the non-disclosure of relevant information by the assessee-Appellants.

Inclusion of Job Work Turnover:
The Tribunal analyzed the turnover related to job work undertaken by the assessee-Appellants, emphasizing that the job work resulted in the creation of immovable property, which is not excisable. The failure to include this turnover in the SSI exemption threshold was noted, and relevant case laws were cited to support the denial of exemption under the Notification No. 214/86.

Allegations of Clandestine Removal:
Regarding the allegations of clandestine removal based on parallel invoices, the Tribunal found that the goods were cleared without printed serial numbers, indicating clandestine removal. The argument that the parallel invoices were not used for clandestine clearance lacked substantiation, leading to the confirmation of the duty demand.

Limitation Period for Demand:
The counsel contended that the entire demand was time-barred, attributing the non-compliance to a bonafide belief regarding exemptions. However, the Tribunal upheld the imposition of penalties and the invocation of the extended period, considering the non-disclosure of clearances exceeding the exemption limit and the use of parallel invoices for clandestine purposes.

In conclusion, the Tribunal dismissed the appeal filed by the assessee-Appellants, upholding the impugned order due to the lack of merit in the arguments presented.