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2023 (11) TMI 885 - AT - Central ExciseWrongful availment of exemption as per the notification 6/2002 dt.1.3.2002 by accounting bogus/excess fly ash receipts - invocation of extended period of limitation - period 2003 to 2005. It is the case of the department that the Appellant has not satisfied the condition in the Notification No. 06/2002 to clear the asbestos sheets at Nil rate of duty since the asbestos sheets (finished products) did not contain not less than 25% fly ash. HELD THAT - The adjudicating authority has not recorded any finding as to whether this contention of the appellant is acceptable or not. The adjudicating authority is seen to be silent or has conveniently avoided recording a finding as to the quantity said to have been procured from Chettinad Cements Corporation. In page 504 of the appeal paper book, the letter dt. 25.3.2004 issued by Chettinad Cements Corporation to the appellant is enclosed. This letter shows the lifting of 748 MTs of dry fly ash from MTPS by appellant which is the allotted quota of Chettinad Cements Corporation - Out of the 2162 MTs on two bills raised by M/s.Karthikeyan Transport on M/s.NEC, a quantity of 1322.235 MTs has been sold by M/s.NEC to appellant. This evidence has not been accepted by the adjudicating authority by observing that appellant has not produced copies of allotment order to these brick companies. The adjudicating authority has not been satisfied by the document showing the source but has rejected this by saying the document of source s source is not produced. The appellant has been able to establish that they have procured fly ash from sources other than MTPS. The Ld. Counsel for appellant submitted that the appellant is able to establish the source of the source also. In response to a RTI application for furnishing the list of Cement and ASC sheet companies which use MTPS dry fly ash, the name of appellant is seen mentioned. In the said list the name of Sakthiguhan Construction, Erode is also mentioned. This would prove that Sakthiguhan is also getting MTPS dry fly ash. In this document, the list of small scale industries which uses MTPS fly ash is also given. This list mentions the name of the six brick making units (Sun Hollow Bricks, Cheran Bricks, Sindhu FA Products, Sankar, Emerald FLAG Bricks, ERK Concrete, RM concrete) from whom Shri Karthikeyan Transports has sourced the fly ash, and supplied to appellant. Similarly, SIAR Traders, Salem is listed at Sl.No.18 in this document. These documents which are reply to RTI supports the contentions of the appellant. After appreciation of the facts, evidence established by documents, the appellant has been able to successfully establish that the alleged bogus quantity of fly ash was actually received in their factory and used in the manufacture of final product. In such circumstances, the allegation that appellant has contravened the condition of the notification 6/2002 dt. 1.3.2002 in as much as their final products did not contain 25% of fly ash is without any factual basis. The demand therefore cannot sustain and requires to be set aside - the allegation of bogus quantity is factually wrong, the penalty imposed on the appellant in E/40390/2021, NEC alleging that NEC abetted / connived in creating bogus receipts also cannot sustain and requires to be set aside. The issue on merits is found in favour of appellants and against the department. Time Limitation - HELD THAT - The entire case is set up on the basis of facts. It is alleged that appellant accounted bogus quantity with intention to wrongly avail the exemption benefit of the notification. As it is already held that the issue on merits that the quantity accounted is not bogus and that the appellant is eligible for benefit of exemption of notification 6/2002 dt.1.3.2002, there are no ground to hold that the appellant has suppressed facts with intent to evade payment of duty. The issue on limitation is also answered in favour of appellant and against the department. The impugned order is set aside - Appeal allowed.
Issues Involved:
1. Eligibility for Duty Exemption under Notification No. 6/2002-CE. 2. Alleged Bogus Fly Ash Receipts. 3. Compliance with Notification Conditions. 4. Admissibility of Additional Evidence. 5. Penalty Imposition. 6. Limitation Period for Demand. Summary: 1. Eligibility for Duty Exemption under Notification No. 6/2002-CE: The appellant, engaged in the manufacture of Asbestos Cement Sheets, claimed duty exemption under Notification No. 6/2002-CE, which required using not less than 25% fly ash by weight. The department alleged that the appellant did not meet this condition due to bogus fly ash receipts. 2. Alleged Bogus Fly Ash Receipts: The department contended that the appellant accounted for bogus/excess fly ash receipts, reducing the actual fly ash usage percentage below 25%. Investigations revealed discrepancies between the fly ash received and the quantity recorded, leading to the conclusion that the exemption was wrongly availed. 3. Compliance with Notification Conditions: The appellant argued that they procured fly ash from various sources, including direct allotment from MTPS, cement companies, and brick manufacturers. They furnished documents to substantiate these claims. The adjudicating authority, however, required proof of the source of the suppliers, which was beyond the notification's requirements. 4. Admissibility of Additional Evidence: The Tribunal had previously remanded the matter for fresh consideration, allowing the appellant to present additional documents. The High Court upheld this decision, stating that the adjudicating authority could verify the authenticity of the documents. The adjudicating authority, however, did not record findings on the evidence provided by the appellant. 5. Penalty Imposition: The penalties imposed on the appellant and the co-noticee (NEC) were based on the allegation of creating bogus receipts. Since the Tribunal found the allegation of bogus receipts factually incorrect, the penalties were set aside. 6. Limitation Period for Demand: The Tribunal concluded that the appellant did not suppress facts with the intent to evade duty, as they had regularly filed returns. Hence, the extended period for demand was not applicable. Conclusion: The Tribunal found that the appellant successfully established the receipt and use of fly ash in compliance with the notification. The demand, interest, and penalties were set aside, and the appeal was allowed with consequential reliefs.
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