9911796707
TMI Blog2011 (5) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 21,91,795/-, were liable to confiscation under Rule 25 of the Central Excise Rules, 2002. Since the goods had been provisionally released the Commissioner granted an option to pay a fine of Rs. 30,00,000/- (Rupees thirty lakhs only) in lieu of confiscation. He also imposed a penalty of Rs. 3,00,000/- (Rupees three lakhs only) on the appellant and a penalty of Rs. 2,00,000/- (Rupees two lakhs only) on Shri Vinod Agarwal, Chairman of the appellant-company and a penalty of Rs. One lakh on Shri Nitin Patki, General Manager of the appellant-company. In respect of the second show-cause notice, the Commissioner determined the assessable value of 1,28,225 pieces of consumer goods manufactured and cleared during the period from 1-9-2003 to 31-12-2007 at Rs. 10,34,50,187/- (Rupees ten crore thirty-four lakhs fifty thousand one hundred and eighty-seven only) and confirmed a demand of duty of Rs. 1,68,53,950/- (Rupees one crore sixty-eight lakhs fifty-three thousand nine hundred and fifty only) under Section 11A(2) of the Central Excise Act, 1944 and also ordered for recovery of interest on the said duty amount under Section 11AB of the said Act. He also imposed an equivalent amount of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any other treatment on the goods to render the product marketable to the consumer amounted to manufacture as per Section 2(f)(iii) of the Central Excise Act, 1944, it appeared that the appellant had carried out manufacturing activity without following the provisions of the Central Excise Act, 1944 and the rules made thereunder. The search party also detained consumer goods lying at the appellant premises valued at Rs. 2,10,22,480/-. Statement of the officers of the appellant-company were recorded. The Store Manager Shri Chandrakant S. Kotian admitted that after the receipt of the goods in their warehouse it was inspected and thereafter each and every unit pack was pasted with MRP and bar code stickers. In respect of goods received from local suppliers, they had sold the goods by putting bar code and the MRP stickers by removing the stickers already affixed. In his further statement Shri C.S. Kotian, admitted that they pasted their own MRP stickers after removing the MRP/RSP stickers of the suppliers as they wanted to (i) hide the name of the importers from the buyers, (ii) alter the MRP of the products sold by them, and (iii) hide the details of the overseas manufacturers. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture; (4) The demand is barred by limitation and they have relied on the following judicial pronouncement in support of the above contentions. [1] Nizam Sugar Factory v. Collector of Central Excise - 2006 (197) E.L.T. 465 (S.C.) = 2008 (9) S.T.R. 314 (S.C.) [2] Hyderabad Polymers (P) Ltd. v. Commissioner of Central Excise - 2004 (166) E.L.T. 151 (S.C.) [3] Pahwa Chemicals Pvt. Ltd. v. Commissioner of Central Excise - 2005 (189) E.L.T. 257 (S.C.) [4] Continental Foundation Jt. Venture v. Commissioner of Central Excise - 2007 (216) E.L.T. 177 (S.C.) [5] Commissioner of Central Excise v. Escorts Ltd. (Ted), Faridabad - 2009 (235) E.L.T. 55 (P & H) [6] CCE v. Panchsheel Soap Factory, 2002 (145) E.L.T. 527 (Tri. - Del.) approved by Supreme Court by dismissing department appeal at 2003 (156) E.L.T. A382 (S.C.) [7] Lakme Lever Ltd. v. CCE - 2001 (127) E.L.T. 790. 5.1 They have further argued that while marketing their product, they have paid service tax on v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a - 1994 (70) E.L.T. 389 (Tribunal) (d) M/s. TVC Sky Shop Ltd. v. Union of India & Anr. in Writ Petition No. 4912 of 2006 (e) 1995 (502) GJX 391 (S.C.) (f) 1988 (512) GJX 460 (S.C.). 7. With regard to the claim of the appellant for CENVAT credit the learned DR submits that no evidence has been produced by the appellant before the adjudicating authority proving their eligibility to CENVAT credit and therefore, the learned Commissioner has rightly denied their claim for CENVAT credit. 8. We have carefully considered the rival submissions. We find that the appeal itself can be disposed of at this stage. Therefore, after allowing the stay petition, we take up the appeal for disposal. 9. In the instant case, the goods involved in the matter and their classification as claimed by the appellants in the import documents are given below : Description of goods Classification claimed by the appellant in the import documents 1. Hair dressing apparatus 8516.00/8516 32 00 2. Electric Smoothing Irons 8516.00/8516 40 00 3. Vacuum Cleaners 8509.00/8509 10 00 4. Hair Dryers 8516.00/8516 32 00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he products or adoption of any other treatment to make the product marketable to the consumer would amount to manufacture. From the materials seized at the time of search and from the statements given by the various employees of the company, it is clear that the appellant had changed the MRP stickers and put their own stickers indicating a higher MRP and they had also affixed bar code on the packages of the product. In some cases, they had also undertaken repacking of the goods as is evident from the records of the case. The above activities clearly amount to manufacture as per the definition given under Section 2(f)(iii) of the Central Excise Act. Therefore, the appellants are liable to discharge excise duty on the said products, notwithstanding the fact they might have paid additional duty of customs (CVD) at the time of their importation. 11. Coming to the issue of the limitation of time raised by the appellant, we find that the extended period of time has been rightly invoked in the instant case. It is not the appellant's contention that they had informed the department of affixing the higher RSP, on the imported or locally procured goods or the fact that they were relabe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RP and charging higher MRP. Therefore, the ratio of the said case does not apply to the facts of the present case. Coming to the reliance on the Hyderabad Polymers (P) Ltd. case the issue related to when an earlier show-cause notice raising the demand on a similar issue and for an identical amount was dropped, subsequent show-cause notice cannot allege suppression of fact or material. This judgment also does not come to the rescue of the appellant because the activity of labelling/relabelling etc. was deemed to be 'manufacture' effective from 1-3-2003. Therefore, the show-cause notice issued in 2001 will not have any bearing as the duty liability arose due to change in law and, therefore, reliance on this case also does not support the case of the appellant. As regards reliance on Pahwa Chemicals Private Ltd. case, in that case the appellant had filed RT-12 returns regularly and invoices containing the description of the goods was approved by the department and, therefore, all the facts were within knowledge of the department and hence it was held that extended period of limitation could not be invoked. In the instant case, the appellant had not registered themselves with the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
