2022 (9) TMI 265 - AT - Central Excise

Area Based exemption - slump sale agreement - whether Balaji had commenced commercial production prior to 31.3.3010 at all which was the cut-off date for the benefit of the exemption notification? - N/N. 49/2003-CE dated June 10, 2003 - HELD THAT - It is not disputed that the first invoice was issued to Balaji on 30.03.2010. The exemption notification was available to new industrial units which commenced commercial production on or before 7th day of January, 2003 but not later than 31st day of March, 2010. Therefore, the date of commencement of commercial production of the unit becomes relevant - Balaji had purchased machinery and raw material, rented the generator set for a short while and started setting up and conducted some trials. Meanwhile, it has received electricity connection on April 24, 2010 and started commercial production. Balaji has not started the commercial production by March 31, 2010 and the condition of the Notification is commencement of commercial production and not commencement of any production - appeal is answered in favour of the Revenue and against the assessee. Levy of penalty - HELD THAT - Raghuveer Beti and C S Rao were the persons concerned who had abetted the wrong. Important documents in the form of Slump sale agreement and the MOU between the two Units which enables the assessee to obtain and transfer the benefit of exemption Notification No. 49/2003 from Balaji to the assessee were in their knowledge. There is, therefore, no reason to interfere with the penalties imposed on them. Appeal dismissed.

Issues Involved:
1. Eligibility of Balaji for the exemption under Notification No. 49/2003-CE.
2. Validity of the slump sale agreement between Balaji and the assessee.
3. Entitlement of the assessee to the exemption under Notification No. 49/2003-CE.
4. Imposition of penalties on the appellants under Rule 26 of the Central Excise Rules, 2002.
5. Credibility of the statements made by Yogesh Kumar Sharma under alleged duress.

Detailed Analysis:

1. Eligibility of Balaji for the Exemption:
The central issue was whether Balaji had commenced commercial production before the cut-off date of March 31, 2010, as required for the exemption under Notification No. 49/2003-CE. The Tribunal found that although Balaji issued an invoice on March 31, 2010, it had not commenced commercial production by that date. The machinery and raw materials were purchased on March 29, 2010, and Balaji did not have an electricity connection until April 24, 2010. The Tribunal concluded that Balaji's production figures indicated that commercial production likely began in July 2010, consistent with Balaji's declaration to the District Industrial Centre (DIC) that it intended to commence production by December 2010.

2. Validity of the Slump Sale Agreement:
The Tribunal scrutinized the slump sale agreement between Balaji and the assessee. The agreement was found to be essentially a method to transfer the benefit of the exemption from Balaji to the assessee. After the sale, Balaji's business of manufacturing cartons was discontinued, and the machinery was sold. The Tribunal noted that the assessee continued to manufacture pharmaceuticals using its own machinery, now under the name Unit II, effectively exploiting the exemption beyond the permissible period.

3. Entitlement of the Assessee to the Exemption:
The Tribunal upheld the Commissioner's order denying the benefit of the exemption to the assessee. The assessee's actions were deemed an attempt to extend the benefit of the exemption notification beyond the ten-year limit by acquiring Balaji and rebranding it as Unit II. The Tribunal emphasized that the slump sale agreement and subsequent Memorandum of Understanding (MOU) between Unit I and Unit II were methods to claim the exemption unlawfully.

4. Imposition of Penalties:
Penalties were imposed on the appellants under Rule 26 of the Central Excise Rules, 2002. The Tribunal found that Raghuveer Beti and C S Rao were involved in abetting the wrongful claim of the exemption. They were aware of the crucial documents, such as the slump sale agreement and the MOU, which facilitated the transfer of the exemption benefit. The penalties imposed on them were upheld.

5. Credibility of Statements by Yogesh Kumar Sharma:
The Tribunal addressed the claim that Yogesh Kumar Sharma's statements were made under duress. Sharma retracted his statements nearly two years later, only after a show cause notice was issued. The Tribunal found this retraction to be an afterthought and gave no credence to it. The original statements were considered valid and not made under duress.

Conclusion:
The Tribunal upheld the Commissioner's order denying the benefit of the exemption under Notification No. 49/2003-CE to the assessee and confirming the demand of duty along with interest. The penalties imposed on Raghuveer Beti and C S Rao were also upheld. The Tribunal concluded that the actions of the assessee and the appellants were aimed at unlawfully extending the benefit of the exemption, and the slump sale agreement and MOU were methods to achieve this end. All three appeals were rejected, and the impugned order was upheld.

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