2019 (12) TMI 635 - AT - Central Excise

Valuation - manufacturer of sugar and sugar confectionery and chocolates and other food preparations - packages, bearing the inscription For Industrial Use/Institutional Use As Raw Material Not For Retail Sale , were also being sold to ultimate consumers - diversion of goods claimed to have been intended for industrial or institutional use - section 4A of Central Excise Act, 1944 - time limitation. HELD THAT - The statutory authorities for enforcement of Legal Metrology Act, 2011 have not initiated any action against the appellant herein. The contents, or lack thereof, in the returns prescribed under Central Excise Rules, 2000 does not find, a place in the impugned order or the show cause notice. Time Limitation - HELD THAT - Limitation is to be decided on the facts of each case. The appellate authorities can only adjudge whether the facts have been appreciated properly and applied against established law. The adjudicating authority does not appear to have applied its mind to this essential aspect that has a bearing on the outcome of the process initiated by the show cause notice - it is considered appropriate to set aside the impugned order and matter remanded back to the original authority for a fresh decision on this sole aspect after granting an opportunity to the appellant to be heard on all the submissions. Appeal allowed by way of remand.

Issues Involved:

1. Bar of limitation on recovery by notice dated 24th December 2014.
2. Duty liability and imposition of penalty under Central Excise Act, 1944.
3. Interpretation of the applicability of the alternate system of evaluation under Central Excise Act, 1944.
4. Compliance with Legal Metrology Act, 2011.
5. Suppression or misrepresentation of facts by the appellant.

Detailed Analysis:

1. Bar of Limitation on Recovery by Notice:
The primary issue addressed in the judgment is the bar of limitation on the recovery notice dated 24th December 2014. The appellant, M/s Morde Foods Pvt Ltd, contended that the duty liability and other detriments on past clearances beyond the normal period of limitation would not lie. The tribunal restricted its findings to this plea alone.

2. Duty Liability and Imposition of Penalty:
The appellant is a manufacturer of 'sugar and sugar confectionery' and 'chocolates and other food preparations,' which were required to discharge duty liability under section 4A of the Central Excise Act, 1944, from 24th December 2008. The central excise authorities argued that the appellant sold packages labeled 'For Industrial Use/Institutional Use As Raw Material Not For Retail Sale' to ultimate consumers, which should have been assessed under section 4A, resulting in a differential duty of ?4,06,47,261, along with interest and penalty under section 11AC of the Central Excise Act, 1944.

3. Interpretation of Applicability of Alternate System of Evaluation:
The appellant argued that the dispute hinges on the interpretation of the applicability of the alternate system of evaluation prescribed in the Central Excise Act, 1944, and its relation to the Legal Metrology Act, 2011. They contended that annual audits of transactions precluded allegations of suppression or misrepresentation of facts. The appellant also cited various circulars and legal provisions to argue that assessment under section 4A was not warranted.

4. Compliance with Legal Metrology Act, 2011:
The appellant claimed that the statutory authorities under the Legal Metrology Act, 2011, did not find any violation in the packages inspected at the distributors' premises. They argued that the requirement of 'retail selling price' was not mandated, referencing provisions of the Legal Metrology Rules, 2011, and interpretations by different High Courts.

5. Suppression or Misrepresentation of Facts:
The central excise authorities relied on statements from the appellant's distributors, directors, and employees to argue that the appellant deliberately suppressed the actual targeted market. The tribunal noted that the adjudicating authority did not properly consider the appellant's submissions on the aspect of limitation and suppression of facts.

Conclusion:
The tribunal found that the adjudicating authority had not applied its mind to the essential aspect of limitation, which has a bearing on the outcome of the process initiated by the show cause notice. Therefore, the tribunal set aside the impugned order and remanded the matter back to the original authority for a fresh decision on the sole aspect of limitation after granting an opportunity to the appellant to be heard on all submissions made before the tribunal. The appeal was accordingly disposed of.

Order Pronounced:
The order was pronounced in the open court on 08/11/2019.

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