2019 (5) TMI 217 - AT - Central Excise

Violation of condition of Notification - N/N. 93/2004-Cus dt. 10/09/2004 - it was noticed by the Department that the appellants have cleared the goods for export as per Customs Notification No.93/2004-Cus dt. 10/09/2004 which is issued for exports affected under Advance License under DEEC Scheme - HELD THAT - The appellant had been issued Advance Authorisation by DGFT for dutyfree import of item viz. Monosodium Glutamate Fine Crystals in terms of Notification No.93/2004-Cus. dt. 10/09/2004. Further the appellant also procured other raw materials from domestic manufacturers without payment of duty as per Notification No.43/2001-CE dt. 26/06/2011 issued under Rule 19(2) of the Central Excise Rules, 2002. Further, there is no dispute that the appellants have manufactured and exported the final product i.e. seasonign powder by using the various raw materials which were imported as well as procured from DTA. Further it is found that there is no violation of the Notification No.43/2001 by the appellant as the appellant has fulfilled all the conditions of the said Notification. In the present cases, the Excise authorities have initiated action for violation of Notification No.43/2001-CE dt. 26/06/2001 which is not sustainable in law. The demand of duty by the Central Excise authorities for violation of Notification No.93/2004 dt. 10/09/2004 is not sustainable in law - appeal allowed - decided in favor of appellant.

Summary

Issues:
11 appeals against common impugned order upholding Orders-in-Original; Duty demanded in each appeal; Appellants manufactured seasoning powder and health drink; Procured raw materials duty-free under Notification No.43/2001-CE(NT); Exported goods under Customs Notification No.93/2004-Cus; Department issued show-cause notices for duty demand; Adjudicating authority held duty forgone on duty-free goods recoverable; Appellants appealed, rejected by Commissioner(Appeals); Legal sustainability of duty demand under conflicting notifications.

Analysis:
The appellants filed 11 appeals challenging a common impugned order that upheld Orders-in-Original passed by the Assistant Commissioner and rejected the appellants' appeals. The issue in all 11 appeals was the same, related to duty demanded in each case. The appellants were manufacturers of seasoning powder and health drink under Chapter 21 of the CETA, 1985, registered under Central Excise. They procured duty-free raw materials under Notification No.43/2001-CE(NT) for manufacturing the products. However, the Department noted that the appellants cleared goods for export under Customs Notification No.93/2004-Cus, which conflicted with the duty-free procurement conditions. Show-cause notices were issued, proposing duty demand on goods procured duty-free. The adjudicating authority held that duty forgone on duty-free goods became recoverable due to export obligations fulfilled under a conflicting notification.

The appellants contended that the impugned order was unsustainable as they complied with all conditions of both notifications. They argued that the duty-free goods were used for manufacturing and exporting final products, fulfilling the intended purpose. The appellants emphasized that no violation of conditions under Notification No.43/2001 occurred, and any alleged violation pertained to a separate customs notification. They argued that excise duty demand was not legally tenable as they met all obligations under the relevant notifications. The appellants highlighted that the imposition of penalties was unjustified as no conditions for penalty imposition were breached.

The Department defended the duty demand, citing the conflict between the notifications and the ineligibility of the appellants for duty-free procurement under one of the notifications. The Department relied on various legal precedents to support its argument for duty recovery. However, the Tribunal found that the appellants were issued Advance Authorisation for duty-free imports under one notification and procured other raw materials duty-free under a different notification. The Tribunal concluded that there was no violation of the duty-free procurement notification, and any alleged violation related to a different customs notification. Therefore, the demand of duty by the Central Excise authorities under the conflicting notification was deemed unsustainable in law, leading to the allowance of all appeals by the appellants with consequential relief.

In conclusion, the Tribunal set aside the duty demand by the Central Excise authorities, ruling in favor of the appellants due to the lack of legal sustainability for the duty demand under the conflicting notifications.