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TMI Blog2018 (5) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the appellants on the premise that they have not filed any declaration under the Notification No. 50/2003 as required and the demand of Service Tax was confirmed under the category of Business Auxiliary Service as job work activity, they are liable to Service Tax. 3. The Ld. Counsel for the appellants submits that they filed declaration under the Notification No. 50/2003 and job work was done on the behalf of the client prior to insertion of clause 5 of Section 65 (19) i.e. before 16.06.2005. The Adjudicating Authority called the report regarding the filing of declaration from the jurisdictional central excise authorities and it has been confirmed they have received the declaration under the Notification No. 50/2003 and the Ld. Adjudicating Authority observed that no doubt they have given a copy of letter which was received by centre office on 06.10.2003 but the Ld. Adjudicating Authority has observed that the appellants had to expend their capacity of producing goods by 25% and the goods, if any installed for making new products will not make them eligible for exemption for entirely new products and since as per the discussion earlier, no substantial expansion is proved, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. On the other hand, the Ld. AR opposed the contention of the Ld. Counsel and supported the impugned order and submitted that the Adjudicating Authority has confirmed from District Industries Center for filing the undertaken by the appellant and no such undertaking was reported thereon. Moreover, the declaration filed by the appellants was doubtful and in reply to the RTI Application, it has been reported as under:- "In respect of the authenticity of the letter C. No. ST-20/Misc/Una/01/2007/945 dt. 15.07.2009 issued by Sector Office. Central Excise Sector, Una alongwith dispatch register, the Superintendent, Central Excise Range Bilaspur vide his letter C. No. CE- 20/RTI/BLPR/84/2009/617 dt. 10.08.2010 has intimated that Sh. Angad Kumar Inspector visited Range Office Bilaspur On 10.08.2010 and stated that the above said letter was written by him under his signature, which was later on cancelled by him as no intimation letter of the party was found in the office record of Sector, Una. He further stated that the letter bearing dispatch No. 945 dt. 15.07.2009 was entered by him in his own handwriting in Despatch Register of the Sector Office, Una." Therefore, the Ld. Adjudicating A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Act, 1978 (40 of 1978), the Central Government being satisfied that it is necessary in the public interest so to do, hereby exempts the goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), other than the goods specified in Annexure-I appended hereto, and cleared from a unit located in the industrial Growth Centre or Industrial Infrastructure from a unit located in the Industrial Growth Centre or Industrial Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate or Scheme Area, as the case may be, specified in Annexure-II appended hereto, from the whole of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts. 1[Provided that the exemption contained in this notification shall apply subject to the following conditions, namely :- (i) The manufacturer who intends to avail of the exemption under this notification shall exercise his option in writing before effecting the first clearance and such option shall be effective from the date of exercise of the option and shall not be withdrawn dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is also extracted here as under:- Ongoing through these documents, we find that the condition stipulated by the Notification has been complied with by the appellants. If there is any discrepancy in the details, in that case, the Department could have asked to the appellants. The contention of the Revenue is that no such declaration is on record and no declaration has been filed, the said fact is incorrect as per the letter issued by the Range Inspector on 15.07.2009. 14. We also take note of the fact that the Ld. AR produced the reply under the RTI Act to one of the RTI activist Sh. Tajinder Singh and in the said reply, the letter dt. 15.07.2009 has been stated to have been withdrawn but it is not coming out from the said reply under which letter No. and on which date, the said letter dt. 15.07.2009 has been withdrawn and what actions have been taken for issuance of the letter dt. 15.07.2009 which creates doubts on the information given by the Revenue, if the letter dt. 15.07.2009 was withdrawn, the Ld. AR was required to produce the letter of withdrawal of letter dt. 15.07.2009 which is not placed on record. Therefore, the benefit of doubts goes in the favour of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant is enclosed. However, the letter dated 15.7.2009 was later on cancelled by the Sector Officer since no intimation letter of the party was found in the office of Sector Officer, Una. This is evident from the reply dt.11.8.2010 given by Deputy Commissioner-cum- CPIO, Shimla to the RTI Activist, Shri Tajinder Singh. Reply dt.11.8.2010 has been placed on record by Ld.AR. Besides, there is no record either of the letter dt.6.10.2003 having been received in the office of Assistant Commissioner, Shimla. There is thus no sanctity of letter dated 6.10.2003 as Sector Officer himself has cancelled the letter dated 15.7.2009, which formed the lone basis of existence of the letter dt.6.10.2003. Hence, no reliance can be placed on the same. I find that the Commissioner has carried out a very thorough and detailed examination of the enquiry of the said letter dt.6.10.2003 and his observations in para 70-74 in this regard are very pertinent, which are produced below: "70. It is difficult to accept the authenticity of this letter. This letter does not indicate the name of the officer who has received it. Secondly, though the letter is typed and apparently addressed to the Assistant Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her letter on record where the text is the same. This letter was recovered during investigation. This letter is reportedly received by the Sector Officer on 06.01.2004. This letter also has a hand written sentence about CC being given to Sector Officer. But hand written remarks on the letter reportedly received on 06.01.2004 is in a different hand writing and is signed by a different person for the party. Another interesting part of the letter is that it is received by the so called Sector Officer on 06.01.2004 whereas the letter, the copy of which has now been produced alongwith annexure was apparently received by the Sector Officer on 06.10.03. It is not understood how the letters having same text and having similar hand written portion but at different places, would have been received on different dates by the Sector Officer, whose name is also not mentioned. 73. Similarly, it is also not relevant for the central excise notification as to what declaration they gave to Sales Tax Department. Anyway, this letter to Excise and Taxation Department is also very interesting. It reads as under: - The Assessing Authority, &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to have been given in 2003 when they were availing the exemption. These have been produced only in 2009. It raises serious doubts about their authenticity. 23. In these circumstances, I find it perfectly legitimate for the departmental authorities to have done cross verification from District Industry Centre and relied upon the report dt.23.10.2008 given by the District Industry Centre. The GMD, DIC, Una vide letter dt.23.10.2008 intimated as below: "1. Ms.Security Engineering Products, Bharwain Road Gagret, Distt. Una was registered on permanent basis vide No.03470 dated 19/1/2001 with due date of production 3.05.99 for the production of Structure on vehicle, Bullet proof jacket, bullet proof head gears, bullet proof morchas. As per record of this office, fixed investment in this unit was as under: Land and building: Rented Machinery:0.78 lacs, Equipments:0.20 lacs. Total Investment:0.98 lacs with the production capacity 212.00 lacs and employment to 13 person. This unit stopped production and has been de-registered vide this office order No.Ind U.Dov. Regd No.2338-2467 dated 9/8/2005. 2. Photocopy of Registration certificate of M/s.Surbhi Perforation and stamping and phot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the burden is on the assessee to keep the department duly informed, which was not done. Hence, there was suppression of facts from knowledge of the Department and the extended period has been correctly applied in this case. 26. As for the penalty on the appellant under Section 11AC, once it is held that the extended period is invokable and there was suppression on the part of the appellant, who did not provide the information which the law required them to provide in order to avail the benefit of notification without being eligible for the same. The penalty on the appellant under section 11AC is justified. As for the penalty on Shri Sandeep Sobti, Managing Director since he was overall incharge of running of the affairs of the factory, he was clearly in the knowledge of the activities leading to non payment of proper excise duty. Hence, the penalty on Shri Sobti under Rule 26 is correctly imposed by the Commissioner. 27. In view of above, the appeals filed by the appellants are dismissed. (DEVENDER SINGH) MEMBER (TECHNICAL) DIFFERENCE OF OPINION As there is divergent views of the Members of this Tribunal, therefore the matter may be placed before the Hon'ble President to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uires that the intimation should be given to the Jurisdictional Assistant Commissioner giving the particulars required stated in the said notification and also submitted that the letter dated 15.07.2009 issued by the Sector Officer addressed to Superintendent Central Excise Division, Shimla which is available at page 72 of the appeal paper book was subsequently cancelled and therefore, it amounts that the intimation was not given by the appellant to the Assistant Commissioner. 31. Having considered rival contentions and on perusal of the record, I find that the appellant has got an acknowledgment of having a letter addressed to Assistant Commissioner intimating availment of the said Notification No. 50/2003 and a copy of which having acknowledged by Sector Officer and that the Sector Officer is part and parcel of establishment of Assistant Commissioner, therefore, as held in various pronouncements that a communication submitted to any authority under establishment was to be treated as submitted to the head of the office. Therefore, I hold that the letter acknowledged by Sector Officer is an intimation submitted to the Assistant Commissioner. If that is not held so than in further ..... X X X X Extracts X X X X X X X X Extracts X X X X
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