2017 (11) TMI 1318 - AT - Central Excise

Clandestine removal - Job-work - demand on the ground that appellant, who is a job worker cleared goods without payment of duty under N/N. 214/86 to traders - Held that - On bare perusal of letter, we do not find any such admission made in the letter - In fact, appellant has furnished the sales tax assessment of one such party viz., M/s. Intech Enterprises, who is described in the document as both manufacturer and trader - The allegation raised in the show-cause notice should be supported by documents to show that the alleged parties are merely traders. The department has denied the benefit of notification and demanded duty without any factual basis - demand set aside - appeal allowed - decided in favor of appellant.

Issues:
1. Demand of duty on job work for various parties
2. Entitlement for clearance without payment of duty under Notification No. 214/86-CE
3. Adoption of lesser assessable value for excisable goods cleared to depot
4. Imposition of penalty under Section 11AC of Central Excise Act, 1944

Analysis:

Issue 1: Demand of duty on job work for various parties
The appellant, engaged in manufacturing Aluminium Alloy Ingots, faced a demand of duty on job work for various parties. The Central Excise department alleged that the Cenvat credit availed on Furnace Oil used for job work was not eligible. However, the Tribunal found that the department lacked documentary evidence to establish that the parties involved were traders. The appellant provided evidence, including a sales tax assessment order, to prove that the parties were manufacturers. The Tribunal held that the demand without factual basis was unsustainable, setting it aside.

Issue 2: Entitlement for clearance without payment of duty under Notification No. 214/86-CE
The appellant was challenged for not being entitled to clearance without payment of duty under Notification No. 214/86-CE when the raw material supplier was a trader. The Tribunal noted that the department failed to conduct proper investigations or provide documentary evidence to support their claim that the suppliers were traders. The appellant's evidence contradicted the department's allegations, leading the Tribunal to conclude that the demand was not legally sustainable. The demand of duty amounting to ?6,91,170/- on this ground was set aside.

Issue 3: Adoption of lesser assessable value for excisable goods cleared to depot
The appellant had adopted a lesser assessable value for excisable goods cleared to the depot, leading to a proposed duty demand. The appellant accepted and paid duty in this regard. The penalty imposed was reduced by the Appellate Commissioner. The Tribunal did not delve into this issue further in the judgment, as it was not a subject of contention in the appeal before them.

Issue 4: Imposition of penalty under Section 11AC of Central Excise Act, 1944
The penalty imposed by the Joint Commissioner was equivalent to the duty amount under Section 11AC of the Central Excise Act, 1944. The Appellate Commissioner reduced the penalty from ?13,750/- to ?3,500/- for a specific issue. The Tribunal did not address the penalty issue in detail in the judgment, as the appellant's appeal primarily focused on the demand of duty and entitlement for clearance without payment of duty under Notification No. 214/86-CE.

In conclusion, the Tribunal allowed the appeal concerning the demand of duty and entitlement for clearance without payment of duty under Notification No. 214/86-CE, setting aside the demands based on insufficient evidence and lack of legal sustainability. The judgment did not extensively discuss the issue of the adoption of a lesser assessable value or the imposition of penalties, as the primary focus was on the demand of duty and entitlement for clearance without payment of duty.

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