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TMI Blog2009 (8) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... riod from Dec, 2006 to Nov, 2007 and Dec, 2007 to 22-6-2008 respectively, without payment of duty. Held that- we find that the appellant has not made out any case for complete waiver of the pie-deposit of the duties demanded and the penalty imposed. As stated earlier, the financial hardship also has not been exhibited to our satisfaction, when we find that the appellant is still in business and there are huge sales revenue. We do not find a case of waiver of pre deposit on this count either. On the other hand, Revenue has made out a strong case for putting the appellant on the stricter terms, thus, direct the applicant/appellant to deposit the entire amount of duty demanded. - E/607/2009 - S/277/2009-WZB/C-II/(EB), - Dated:- 7-8-2009 - S/Shri A.K. Srivastava, Member (T) and Ashok Jindal, Member (J) Shri T. Vishwanathan, Advocate, for the Appellant. Shri P.K. Agarwal, SDR, for the Respondent. [Order per: A.K. Srivastava, Member (T)]. - The applicant in the present appeal has filed the application for stay and waiver of pre deposit of an amount of duty of Rs.3,15,06,727/- demanded in terms of proviso to Section 3(1) of the C.E. Act, 1944 and confirmed under provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If (i) the goods are produced or manufactured wholly from the raw material produced or manufactured in India; (ii) such finished goods are cleared into Domestic Tariff Area in accordance with sub-paragraphs (a), (b), (d) and (h) of Paragraph 6.8 of the Export and Import Policy; and (iii) the goods, if manufactured and cleared by the unit other than export oriented undertaking are wholly exempt from duties of Excise or are chargeable to "NIL " rate of duty. EXIM Policy (Para 6.8) The entire production of EOU/EHTP/STP/BTP units shall be exported subject to the following: (a) Units, other than gems jewellery units, may sell goods upto 50% of FOB value of exports subject to fulfilment of positive NFE on payment of concessional duties. Within the fee entitlement of DTH sale the unit may sell in DTA its products similar to the goods which are exported or expected to be exported from the units. No DTA sale at concessional duty shall be permissible in respect of motor cars, alcoholic liquors, books and tea (except instant tea) or by packaging/labeling/segregation/refrigeration unit/compacting/ micronisation/pulverization/granulation/conversion of mono hydrate form of chemical t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the First Schedule notwithstanding that no excise duty is leviable thereon, in certain cases, for the time being, and this emphasises that good necessarily has to suffer duty to qualify as "excisable goods". On the other hand, the Ld. SDR submitted that the amendment made in 1956 (supra) has no bearing on the definition of excisable goods and ld. Counsel's reference to the said amendment is out of context. He referred to the definition provided under Sec. 2(d) of the Act and submitted that the definition does not provide for levy of duty to consider the goods as excisable goods. He took us to Para 79 of the decision of the Hon'ble Supreme Court in matter of Associated Cement Co. [2001 (128) E.L.T. 21 (S.C.)], which reads as follows: Under the Central Excise Act, 1944 in definition of words "excisable goods" under Section 2(d), the very specification or inclusion of goods in the First and Second Schedule of the Central Excise Tariff Act would make them excisable goods subject to duty................. He also referred to a decision of Punjab Haryana High Court in the matter of M/s. Hind Rubber Factory [1990 (48) E.L.T. 363] wherein it has been held that the only requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate of duty as 'NIL ', it could not be contended that these goods are not 'excisable goods'. In this connection, we may also refer to Section 3, which is the charging section which provides for the levy and collection of excise duty on all excisable goods produced or manufactured in India at the rate set forth in the Schedule, thereby showing that excisable goods in the definition in the section refer only to the description of the goods in column (2) of the First Schedule, and not the rate of duty in column (3) of that Schedule................ 23. In view of the above authorities, except the High Courts of Madhya Pradesh and Allahabad, a large majority of the other High Courts have taken the view that excisable goods do not cease to be excisable goods on exemption being granted under Rule 8 of the Rules. In support of the same conclusion, we may add some more reasons. The definition of the expression "excisable goods" consists of two parts. The first part lays down that such goods are those which are specified in the First Schedule. The second part is that such goods are subject to a duty of excise. It is significant to note that the two parts of the definition are not disj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 28-7-1987 and 892/12/09-CX., dated 23-7-2009. We find that Commissioner at Para 34 of his Order-in-Original has brought out that the processes involved result in the production of new identifiable and distinct product. Further, packing, branding involved makes the impugned products marketable also. She has also quoted the definition of term 'manufacture' at para 9.37 of the Policy as follows: "To make, produce, fabricate, assemble, process or bring into existence, by hand or by machine, a new product having a distinctive name, character or use and shall include processes such as refrigeration re-packing, polishing, labeling, re-conditioning repair, remaking, refurbishing, testing calibration, re-engineering. Manufacture, for the purpose of the Policy, shall also include agriculture, aquaculture, animal husbandry, floriculture, horticulture, pisiciculture, poultry, sericulture, viticulture and mining." Therefore, any agricultural or horticultural activities, which result in production in an EOU, stood approved by the Board of Approvals after assessing the export potential. 'Agriculture' and 'horticulture' are thus regarded as 'manufacture' by the Policy in terms of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of C.K. Gangadharan v. CIT [2008 (228) E.L.T. 497] unless mala fides on the part of Revenue is proved. In a further reported case law in the matter of BSNL [2006 (2) S.T.R. 161 (S.C.)], it was held by the Apex Court at para 18 of the said judgment 'that res judicata does not apply in matters pertaining to tax for different assessment years because res judicata applies to debar Courts from entertaining on the same cause of action whereas the cause of action for each assessment year is distinct'. We have considered these submissions and also gone through the order of Commissioner (Appeals) and find that the order of the Commissioner (Appeals) has not considered the basic law laid down by the Apex Court and the High Courts (as supra) that the goods specified in the Schedule to the tariff do not cease to be excisable goods on the ground that the tariff rate is nil or exempted by some notification. We, thus, find that the impugned demand for the subsequent period will not be hit by the earlier order of the Commissioner (Appeals) on the grounds and the case laws mentioned supra. 7. Another plea taken by the ld. Counsel that the Department's Circular No. 31/2001-Cus., dated 24-5- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 841.495 From the above table, we find that the total DTA sales for the block period 2002-03 to 2006-07 are to the extent of Rs.3235.05 lakhs and the DTA sale entitlement for the subject block is Rs.393.545. Therefore, it is clear that the total DTA sale entitlement for the subject block has exhausted in 2002-03 itself and any demand of duty for DTA clearance during and after 2003-04 has to be on the full value of all the DTA clearances denying the benefit of concessional duty in the terms of the said Notification 23/2003-C.E. Admittedly, the impugned demand is for the period from December 2006 onwards. Therefore, even if we consider that for the block 2002-03 to 2006-07, NFE is positive, the DTA sale during 2003-04 and onwards cannot be allowed at the concessional rate of duty and duty has rightly been demanded without the benefit of said Notification. Similarly, the following table is reproduced below for showing their export performance and DTA entitlement for the period 2007-08 onwards: (Figures Rs.in lakhs) YEAR 2007-08 2008-09 (upto 22 June 08) TOTAL EXPORTS (As per NFE chart) Pg 128 of Appeal paper book 25.28 .29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by balance sheet does not come to the rescue of appellant, when safeguarding the interest of revenue equally weigh consideration. We reproduce below Para 4.4 of the said decision: " ...............the plea of accumulated loss and financial sickness shall not be of any help to the appellant when the appellant fails to establish his claim to be genuine and admissible in law............." 11. We have also perused the guidelines for dispensation of pre deposit as laid down by the Apex Court in the matter of Ravi Gupta v. Commissioner Sales Tax, Delhi [2009 (237) E.L.T. 3 (S.C.)] and Manotosh Saha [2008 (229) E.L.T. 492 (S.C.)]. Taking into account the twin requirements of consideration i.e. prima facie case, consideration of undue hardship aspect and imposition of conditions to safeguard the interest of revenue, we find that the appellant has not made out any case for complete waiver of the pie-deposit of the duties demanded and the penalty imposed. As stated earlier, the financial hardship also has not been exhibited to our satisfaction, when we find that the appellant is still in business and there are huge sales revenue. We do not find a case of waiver of pre deposit on this c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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