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TMI Blog2016 (2) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... - 208010 (UP) (hereinafter referred to as 'the co-applicant No. 1') 4434 1-9-2014 3. Mr. Javed Iqbal, C/o M/s. Naaz Leather Finishers, 14-A, 150 ft road, Jajmau, Kanpur - 208010 (UP) (hereinafter referred to as "the co-applicant No. 2") 4435 1-9-2014 4. Mr. Zafar Iqbal, C/o M/s. Naaz Leather Finishers, 14-A, 150 ft. road, Jajmau, Kanpur - 208010 (UP) (hereinafter referred to as "the co-applicant No. 3') 4436 1-9-2014 5. Mr. Rais Iqbal, C/o M/s. Naaz Leather Finishers, 14-A, 150 ft. road, Jajmau, Kanpur - 208010 (UP) (hereinafter referred to as 'the co-applicant No. 4') 4437 1-9-2014 2. M/s. Naaz Leather Finisher, 14-A, 150 Ft. Road, Kanpur is a partnership concern and are engaged in the manufacturing of Leather Shoe Upper (falling under CSH No. 6403) for M/s. Bata India Ltd. and also manufacturing finish Leather falling under CSH No. 4107 or 4112 or 4113, 4114, 4115, which attracts nil rate of duty in the tariff. The applicant has taken Central Excise registration No. AAABFN1189NEM002 on 6-5-2011, but did not declare that they were also manufacturing finished leather which has been covered in the 1st Schedule of Central Excise Tariff Act, 1985. 3. Dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SI exemption is admissible during 2008-09, 2009-10 and 2010-11. 7. After completion of the investigations, the SCN was issued proposing :- (i) Central Excise duty amounting to Rs. 21,51,725/- for the period 2008-09 to 2010-11 should not be demanded and recovered, from them under proviso to Section 11A(1) of the Central Excise Act, 1944 alongwith interest under the provisions of Section 11AA (previously Section 11AB) of the Act; (ii) Interest for the delayed payment under Section 11AA (previously Section 11AB) of Central Excise Act, 1944 should not be charged on the duty demanded in the SCN. (iii) penalty should not be imposed upon them under Section 11AC of Central Excise Act, 1944 of the reasons discussed therein above. (iv) penalty should not be imposed upon them under Rule 25 of Central Excise Rules, 2002; (v) penalty should not be imposed upon them under Rule 27 of Central Excise Rules, 2002 for not taking registration; 7.1 Penalty was also proposed on the co-applicant No. '1', '2', '3' & '4' in the SCN under the Act. 8. The applicant in their settlement application has sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the condition (d) of Section 32E of the Central Excise Act 1944, has not been fulfilled. 10. The applicant in their reply submitted that during the period i.e. Financial Year 2009-10 and 2010-11 for which liability has been admitted by the applicant, that the applicants were manufacturing, shoe uppers and supplying the same to M/s. Bata India Ltd. only without any marking and also manufacturing the finished Leathers chargeable to NIL rate of duty. The applicant being under a bona fide belief that they are eligible for SSI exemption has not taken any registration and by way of SCN, it came to the notice of the applicant that SSI Exemption is not available to them. The applicant during the disputed period had purchased inputs and machinery indigenously and also imported inputs and machinery on payment of Cenvat and/or AED equivalent to Cenvat, which have been specifically used in the manufacture of Shoe Uppers. Hence, the credit of said purchase and import are available to the applicants in terms of Rule 3 of the Cenvat Credit Rules, 2004. As such, while admitting the liability the applicants have taken and utilized the same for discharging the liability in the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant had started paying Central Excise duty on leather shoe upper from 2011-12. The department's contention that all excisable goods cleared from the factory of the applicant was more than Rs. 4 crore for the year 2008-09, 2009-10 and 2010-11 and therefore, SSI exemption was not admissible, is not correct. Also according to the department, the shoe upper manufactured by them carried the name "tarun" which was a brand name of M/s. Bata India Ltd. and as such the benefit of notification No. 8/2003 was not admissible to the applicant. The ld. Advocate contended that this was not correct and the letter from M/s. Bata India enclosed at page 47 of the Paper Book made it clear that "tarun" was not brand name of M/s. Bata India Ltd. but an in-house name of the applicant and therefore, the notification benefit was admissible to them. As such, as against the SCN demand of Rs. 21,51,725/- the applicant had admitted the demand of Rs. 9,72,042/- on a cum duty basis. The ld. Advocate submitted that for the year 2008-09, the benefit of SSI was admissible to them as the clearance in preceding financial year had not crossed the stipulated limit. The ld. Advocate further submitted that it was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods within the factory of production of the specified goods. Nil 2. The exemption contained in this notification shall apply subject to the following conditions, namely :- (vii) the aggregate value of clearances of all excisable goods for home consumption by a manufacturer from one or more factories, or from a factory by one or more manufacturers, does not exceed rupees three hundred lakhs in the preceding financial year, (amended to rupees four hundred lakh vide Notification No. 10/2005-C.E., dated 1-3-2005) 13.1 The effect of the notification is that if an assessee has an aggregate value of clearances of excisable goods of less than 4 crores in a particular year, the assessee becomes eligible to avail the benefits of the notification in the following financial year provided other conditions are also fulfilled, the relevant condition in the instant case is as follows : 3. For the purposes of determining the aggregate value of clearances for home consumption, the following clearances shall not be taken into account, namely :- (a) clearances bearing the brand name or trade name of another person, which are ineligible for the grant of this exemption in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The revenue has cited the procurement order dated 8-1-2013 from Bata India to contend that "Tarun" is a brand name belonging to M/s. Bata India. The applicant on the other hand have produced a letter from M/s. Bata India stating that they do not have any such brand name nor do they sell any of their product under the brand name "Tarun". The applicant have contended that the word "Tarun" is an in-house name for the 'leather shoe upper' and not a brand of M/s. Bata India, the Bench observes that after the hearing on 8-4-2015 and till date, this point has not been refuted by the revenue. As a matter of fact, the Bench notes that Revenue was not even present during the hearing and had not sought any exemption from attendance at the hearing. In the absence of any refutation on this issue, the Bench accepts the evidence of M/s. Bata India that they do not own or sell any product under the brand name "Tarun". 13.6 Accordingly the Bench holds that for the year 2007-08, the aggregate clearance of Rs. 3.6 crore, made the applicant eligible for availing benefits of the Notification 8/2003-C.E. in the financial year 2008-09. 13.7 Both the Revenue and the applicant have pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t taken the registration till 6-5-2011 and therefore is not eligible for availing Cenvat credit. The applicant on the other hand has produced invoices for their domestic purchase where payment of central excise duties is clearly shown. The applicant has also produced copies of Bills of entry and related documents as proof of import of capital goods. The scheme of Cenvat credit envisages avoidance of cascading effect of taxation and duty paid goods are procured, the assessee is allowed to avail credit of duty paid. The Revenue has not questioned the authenticity of these documents. As such the Bench Finds that there is a substantial compliance of the Cenvat scheme and the eligibility of the applicant to avail the credit is not disputed. To be sure there is a procedural irregularity in not maintaining proper records, but in a settlement proceeding where admission and disclosure and payment of the admitted duty liability is a necessary ingredient, and where duty paid invoices are not disputed, the procedural irregularity can be condoned. The Bench accordingly allows availment of Cenvat credit on duty paid documents relating to capital assets procured domestically and through import. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the SCN and grants immunity from penalty in excess of that amount. Full immunity from penalty is granted to the co-applicants.
Prosecution : subject to the payment of fine and penalty as ordered above, the Bench grants immunity from prosecution to the applicants under the Act in so far as this case is concerned.
14. The above immunities to the applicant are granted under sub-section (1) of Section 32K of the Act. Attention of the applicants is also drawn to the provisions of sub-section (2) and (3) of Section 32K ibid.
15. This order shall be void and immunities withdrawn if the Bench finds, at any time, that the applicants had concealed any particular material to the settlement or had given false evidence or had obtained this order by fraud or misrepresentation of facts. Attention is drawn to sub-section (9) of Section 32F of the Act.
16. A copy of this order is given to all the applicants herein and to the jurisdictional Commissioner (s) for their use in the implementation of this order. No one should use this order in any other manner or for any other purpose without the written permission of the Commission. X X X X Extracts X X X X X X X X Extracts X X X X
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