TMI Blog2010 (8) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty by the assessee who wants to claim necessary concession under the Notification - burden in that regard would lie upon the claimant - unilateral document by the assessee cannot be termed as proof of payment of duty - onus would not shift upon the Department till primary burden in this regard is discharged by the assessee – Assessee failed to discharge burden – Appeal rejected - E/5997, 6017 and 6021/2004 - 619-621/2010-EX(PB) - Dated:- 11-8-2010 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri R. Santhanam, Advocate, for the Appellant. Shri B.K. Singh, Jt. CDR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. Since common questions of law and fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... livered by this Tribunal in the matter of Auro Textile v. CCE, Chandigarh, reported in 2010 (253) E.L.T. 35, is clearly attracted and covered by that decision. 6. The Tribunal in the said decision in the matter of Auro Textile (supra), while dealing with the matters wherein the authorities had denied benefit of the Notification in question to the assessee therein and while dealing with the issues as to whether the conditions attached to the said Notification provide that the benefit under the said Notification can be availed in relation to the products which are subjected to actual payment of duty and not otherwise, and secondly as to the scope of the Explanation-II to the said Notification and whether the legal fiction created thereunder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee prescribed under condition relates to discharge of duty liability. The explanation specifies that even without production of any document evidencing payment of duty, the assessee would be entitled to claim the benefit under the notification. In other words, the explanation absolves the assessee from the primary obligation of an assessee which is otherwise required to be performed while claiming any benefit under a taxing statute and it relates to the proof of payment of duty. It is settled law that it is always for the assessee to establish that he has discharged the liability regarding the payment of duty or tax. Only when this primary burden is discharged, the onus shifts upon the department to establish that the assessee is a defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty payment in respect of textile fabrics and it does not anywhere mention that the appropriate duty of excise leviable on textile fabrics need not be paid or that the textile fabrics shall be deemed to have been duty paid even if it was exempted from payment of duty or it has not suffered any payment of excise duty. 45. At this stage, it is worthwhile to refer to the decision in the matter of CCE, Mumbai-I v. Bombay Dyeing Mfg. Co. Ltd., reported in 2007 (215) E.L.T. 3 (S.C.) wherein, with reference to the notification in question itself, it was observed that when we come to the Exemption Notification No. 14/2002-C.E., the requirement was that exemption on grey fabrics was admissible subject to the assessee paying duty on yarn befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Table against any of the S. Nos. 3, 4, 6, 7, 8, 13 and 16, manufactured by a composite mill (i.e. a manufacturer engaged in processing of fabrics along with the spinning of yarn from fabrics and weaving or knitting or crocheting of fabrics within the same factory), or by a manufacturer engaged in processing of fabrics along with weaving or knitting or crocheting of fabrics within the same factory, the condition specified in column (5) against each of the said respective S. Nos. is intended to have been satisfied if the said processed fabrics are manufactured from textile fibres or yarns, as the case may be, on which the appropriate duty of excise leviable under the First or the Second Schedule to the said Central Excise Tariff Act read wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Notification to claim the benefit thereunder. The onus would not shift upon the Department till primary burden in this regard is discharged by the assessee. In the case in hand, we do not find such a burden having been discharged by the appellants. 11. As regards the imposition of penalty is concerned, as already held in Auro Textile s case (supra), the appellants are justified in contending that the matters involve issue relating to the interpretation of the Notification and, therefore, there was no justification for imposition of penalty. Hence, the challenge to the imposition of penalty is upheld and the orders in that regard are set aside. 12. In the result, therefore, the appeals partly succeed as far as they relate to the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
|