2023 (7) TMI 537 - AT - Central Excise

Liability of appellant to pay Excise duty - stock of 130.82 metric tonnes of finished goods lying at a place outside the factory of the appellant. According to the appellant, the goods were lying in a godown of the appellant but according to the Department it was lying in a warehouse belonging to the appellant. HELD THAT - It is difficult to accept the finding recorded by the Commissioner (Appeals) that the goods should be treated as lying in the warehouse. In the first instance, the show cause notice does not even allege that the goods were lying in the warehouse and secondly, the godown could not have been treated as a warehouse. A warehouse has been defined under rule 2(H) of the 2002 Rules to mean any place or premises registered under Rule 9. It is the specific case of the appellant that the premises were not registered as a warehouse. This apart, the show cause notice does not even allege that the premises which the appellant alleges is a godown is a warehouse. The Commissioner has merely drawn a presumption that the premises should be treated as a warehouse. The observations made by the Commissioner that the appellant had not submitted anything to substantiate the date and time when the goods were transferred from the factory to outside godown is also not justified as the show cause notice proceeds on the footing that the goods had been transferred to the godown prior to November 02, 2006. Such being the position, it is not possible to sustain the order dated July 30, 2020 passed by the Commissioner (Appeals) - Appeal allowed.

Summary

Issues involved:
The liability of the appellant to pay excise duty on finished goods outside the factory premises.

Summary:
The appellant, engaged in manufacturing M.S Ingots, Casting, and Runner/Riser, availed area-based exemption. The dispute arose regarding the liability to pay excise duty on finished goods outside the factory. The Commissioner (Appeals) upheld the duty payment based on the goods being in a warehouse, triggering this appeal.

The Commissioner relied on Rule 4(1) of the Central Excise Rules 2002, stating duty is payable on goods in the factory or warehouse on the removal date. The appellant contested this, arguing the goods were not in a warehouse and no evidence indicated when they were moved to the godown.

The Tribunal found the Commissioner's presumption that the goods were in a warehouse unjustified. The show cause notice did not allege this, and the appellant's premises were not registered as a warehouse. Moreover, the notice assumed the goods were transferred to the godown before the exemption period ended, without evidence.

Therefore, the Tribunal set aside the Commissioner's order, allowing the appeal in favor of the appellant.