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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 ..... ent to establish any culpability. The Bench accordingly finds that the applicant has made full and true disclosure and has cooperated in the proceeding during the investigation as well as before the Commission. In view of above and the facts and circumstances of the case, the Bench settles the case under Section 32F(5) - immunities to the applicant granted under sub-section (1) of Section 32K of the Act. - 4433-4437/2014 - Final Order No. F.-2437-2441/CE/2015-SC(PB) - Dated:- 5-6-2015 - Shri MIJ Michael, Chairperson, H.K. Jain and Arun Sahu, Members Shri Amit Awasthi, Advocate, for the Assessee. None, for the Department. ORDER This order disposes of settlement applications No. 4433/2014 to 4437/2014 filed on 1-9-2014 filed under Section 32E of the Central Excise Act, 1944 (in short the Act ) for settling the dispute arising out of show cause notice C. No. V(15)/Off/ADJ/CE/123/2013/11860, dated 31-7-2013 (in short the SCN ) issued by the Additional Commissioner of Custom, Central Excise Service Tax, Kanpur (hereinafter referred to as the Revenue ). Sr. No. Name of the Applicants with address Sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nil tariff rate. Further on enquiry the applicant informed that they are manufacturing both the above said excisable items in the same premises. From 2011-12 they have started paying Central Excise duty on leather shoe upper manufactured for M/s. Bata India Ltd. from beginning of the financial year. 4. In this case, the applicant is manufacturing finished leather which is duly included in the 1st schedule of Central Excise Act, 1944 and classified under Chapter 41 of CETA, 1985 and are capable of being sold as evident from the balance sheet where the sale value of finished leather is given. Therefore, it appears that the sale value of finished leather classified under Chapter 41 of CETA, 1985 should be included in availing/admissibility of the benefit of said SSI notification. 5. On enquiry from the applicant regarding supply of leather shoe upper to be supplied to M/s. Bata India Ltd. the applicant vide their letter enclosed the purchase order and a leather shoe upper on the inner sole of which Tarun was printed with ink. On perusal, it appeared that the applicant had manufactured said shoe upper in the brand name of Tarun as per the requirement of M/s. Bata India Ltd. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/2003, dated 1-3-2003 after availing threshold limit of SSI exemption of ₹ 1.50 crore. Since in the financial year 2007-08, the applicant s aggregate clearances were below 4 crore and clearance made in the financial year 2008-09 were within the exemption limit of ₹ 1.50 crore, no duty liability was made out against the applicant. Further in the financial year 2008-09 and 2009-10, the aggregate clearances are above 4 crore, as such the applicant is liable for duty from the first clearances and liable for duty ₹ 9,70,242/- only in the financial year 2009-10 and 2010-11, which has been arrived at after availing benefit of cum duty price. Hence, (a) Central Excise duty liability of the applicant may be determined at ₹ 9,72,042/- by extending the cum-duty price benefit to the applicant and the same may be accepted as full and final disclosure for settlement. The duty has been adjusted from the Cenvat of ₹ 11,10,838/- paid by the applicant on inputs and capital goods used specifically for manufacture of shoe uppers. (b) Interest liability of the applicant may be settled at ₹ 12,290/- under Section 11AB of the Act and the same may be acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly after requirement of taxable invoice to their client M/s. Bata India Ltd. Even if their aggregate clearance is less than ₹ 4 crores, the main applicant are required to pay duty on clearances of shoe uppers as the shoe uppers manufactured and cleared by them were branded goods and no SSI exemption under Notification No. 8/2003, dated 1-3-2003 was admissible to them. It has also been categorically mentioned in the SCN that as per the purchase order No. 1300099, dated 8-1-2013, the applicant were manufacturing Tarun brand as per requirement of M/s. Bata India Ltd. Therefore, the goods are branded and not entitled for exemption under Notification No. 8/2003, dated 1-3-2003. The duty liability upon the applicant is from 2008-09 to 2010-11 amounting to ₹ 21,51,725/- and not ₹ 9,70,242/- as claimed by the applicant. Further, the admissibility of Cenvat credit is governed by procedure/documentation as laid down in Cenvat Credit Rules, 2004, which the applicant has not complied with. In these circumstances, the applicant cannot be permitted to take credit for the past year during the course of which prescribed procedure was not followed, and also when verification of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944) (herein after referred to as the Central Excise Act) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 8/2002-Central Excise, dated the 1st March, 2002, published in the Gazette of India vide number G.S.R. 129(E), dated the 1st March, 2002, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts clearances, specified in column (2) of the Table below (hereinafter referred to as the said Table) for home consumption of excisable goods of the description specified in the Annexure appended to this notification (hereinafter referred to as the specified goods), from so much of the aggregate of, - (i) the duty of excise specified thereon in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the First Schedule); and (ii) the special duty of excise specified thereon in the Second Schedule to the said Central Excise Tariff Act, 1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether registered or not, that is to say, a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person; (B) where the specified goods manufactured by a manufacturer bear a brand name or trade name, whether registered or not, of another manufacturer or trader, such specified goods shall not, merely by reason of that fact, be deemed to have been manufactured by such other manufacturer or trader; On fulfilment of the conditions the assessee can clear excisable goods, in the next financial year, at nil rate of duty for the first aggregate value of clearances of ₹ 1.5 crores. 13.2 In the instant case, the Revenue has inter alia contended that the applicant is not eligible to avail the benefit of the SSI exemptions under the aforesaid notification on the ground that (a) the aggregate value of clearances, as per the bala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re subject to NIL rate of duty while the goods manufactured for M/s. Bata India are subject to duty but are governed by the benefits accruing to the applicant under the Notification 8/2003-C.E. In this respect the Bench finds that as per the balance sheet produced by the Revenue for the year 2008-09, out of the aggregate clearance of ₹ 6,28,07,551/- crore, the value of clearance for the leather shoe upper for M/s. Bata India was ₹ 1,38,53,264/- crore. As such the applicant were well within the overall limit of clearance of ₹ 1.5 crore, where the duty under the Notification 8/2003-C.E. was NIL. The finished leather goods were in any case subject to NIL rate of duty. The applicant has therefore rightly contended that the there was no duty liability on them for the year 2008-09. 13.8 For the years 2009-10 and 2010-11, the applicant has admitted that since the aggregate value of clearances for the year 2008-09 was more than ₹ 4 crore, duty on leather shoe upper was required to be paid and accordingly has admitted an amount of ₹ 9,72,042/- on a cum duty basis for the year 2009-10 and 2010-11. The Bench however finds that the applicant has not taken r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant cleared goods clandestinely nor is there any charge against M/s. Bata India that they procured goods from the applicant without payment of duty. Under the circumstances the Bench holds that in terms of the Supreme Court judgment in the case of Commissioner of Central Excise, Delhi v. Maruti Udyog Ltd. [2002 (141) E.L.T. 3 (S.C.)], the benefit of cum-duty is available to the applicant. 13.11 Late fee, as prescribed, for late filing of returns is to be paid by the applicant. So far as the co-applicants are concerned, the Bench finds that no specific charge has been alleged against the co-applicants. The SCN only states that the co-applicants who are partners of the applicant are responsible for any activity in their factory premises. This is not sufficient to establish any culpability. 13.12 The Bench accordingly finds that the applicant has made full and true disclosure and has cooperated in the proceeding during the investigation as well as before the Commission. In view of above and the facts and circumstances of the case, the Bench settles the case under Section 32F(5) of the Act on the following terms :- Central Excise Duty : The total Central Excise duty in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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