9911796707
TMI Blog2022 (11) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... re different factories. Different units to be regarded as one factory if all excisable goods are manufactured in the same premises. The audit para No.2 of IR No.30/2004-05 on the basis of which the present issue was raised has been dropped by AG (Odisha) as held in the present Order-in-Original (para 5.9 at page 63). Intimation by the Department to the Appellant regarding dropping of the said para forms part of the Appeal Paper book. The Show Cause Notice dated 19.11.2007 was issued to the Appellant on the basis of said audit para. When the audit Memo itself has been dropped, the present proceeding which has been originated from the said audit Memo has become non est - Hon ble Supreme Court in the case of ANAND NISHIKAWA CO. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MEERUT [ 2005 (9) TMI 331 - SUPREME COURT] has held that when facts were known to both the parties, the omission by one to do what he might have done not that he must have done would not render it suppression. On identical issue the Show Cause Notice has been adjudicated in favour of the Appellant and has attained finality in the absence of any challenge by the Department. The subsequent notice cannot be issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation as well. 1.4 During 2002-03, RFP received capital goods in the nature of spares, components and accessories involving Central Excise Duty of Rs.32,58,646/- and RFP availed 50% of the total CENVAT Credit i.e., Rs. 16,29,323/- during the year 2002-03. The remaining credit of Rs.16,29,323/- was availed by RSP in October 2003. However, the operation of RFP was stopped w.e.f 02.11.2002 and no production has been undertaken since then. RSP vide letters dated 25.08.2004 and 02.11.2004 also intimated the jurisdictional Commissioner, Rourkela regarding availment of RFP s credit by RSP so that the same could be utilized. 1.5 In furtherance to Appellant s letter dated 02.11.2004 two Show Cause Notices were issued challenging availment of credit of Rs.5,00,000/- by RSP. The said Show Cause Notices were replied to and were adjudicated vide order in Original No. dated 29.12.2005. The said Order-in-Original specifically recorded in its findings that RSP and RFP are one and the same for the purpose of CENVAT Credit Rules. That only due to the convenience of Central Excise department, RSP and RFP were kept under two different Range Offices and were issued two separate registrations. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant and hence availment of CENVAT Credit of the fertilizer plant by the Appellant is in contravention of Rule 4(2)(b) and Rule 8 of the CENVAT Credit Rules. Hence the present Appeal before the Tribunal. 2. Ld.Advocate, appearing on behalf of the Appellant submitted as under :- 2.1 Finding of the impugned order that RFP and RSP are two separate units, located at two different sites and separately registered with Central Excise Department is factually incorrect. The Appellant submits that RFP is only a part/ unit of the RSP and that both are parts of the same legal entity, i.e., Steel Authority of India Limited, Rourkela Steel Plant having the same PAN and located within the same premises. The Appellant submits that RSP is an integrated steel plant comprising various divisions/ plants such as Steel melting Shop, captive Power Plant, Coke Oven Plant, Fertiliser Plant, Hot Strip Mill, Cold Rolling Mill, etc. All the divisions/ plants are located within the boundary of RSP having inter-connected processes and all the units together comprise of the Steel Plant. 2.2 As submitted in the facts and as also recorded in the Order-in-Original dated 29.12.2005[pages 102-108 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anagement, control and administration. Thus, it is impossible to state that RFP and RSP were two sperateassessees. In support of such submission the Appellant relies upon the following judgments:- a. K.M. Sugar Mills Ltd. Vs. CCE, Allahabad [2001 (133)ELT 567 (Tri.-Del.)] b. Commissiner of Central Excise, Madurai Vs. Rajshree sugars Chemicals Ltd., [2014 (299) ELT 277 (Mad)] C. Inox India Ltd., Vs. CCE,[ 2001 (133) ELT, 487 (Tri.-Mum.)] 2.7 Even the relevant audit para number 2 of IR No. 30/2004-05 on the basis of which the present issue was raised has been dropped by AG (Odisha), as held in the present OIO (Para5.9 at Page 63]. Intimation by department to the Appellant regarding dropping of the said para forms part of the appeal paper book as Annexure-13 (pages 111-112 of the appeal paper book). 2.8 The Appellant further submits that in cases where Show Cause Notices are issued on the basis on audit paras and when such audit para itself is dropped by the department, the SCNs issued on the basis of such audit para also cannot sustain. In support of its submission, the Appellant places reliance on the case of Hindustan Zinc Ltd., Vs. Commissioner of CGST, Udaipur [2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, 2002 in the present case. Therefore, the grounds of appeal as well as the impugned order have travelled beyond the scope of show cause notice and the Respondents have attempted to improve their case in the appeal proceedings. The appellant submits that it is a well settled law that if any reasoning in the appellate order is beyond the allegations of SCN, it amounts to violation of the principles of natural justice as the assessee was never given an opportunity to rebut the same at the very first instance of replying to the SCN, which is not permissible under law. In this regard, the Appellant relies on the following case laws: a. Commissioner of Central Excise vs. Gas Authority of India Ltd. [2008 (232) ELT 7 (SC)] b. Commissioner of Customs, Mumbai Vs. Toyo Engineering India Ltd. [2006 (201) ELT 513 (SC)] c. Commissioner of Central Excise, Nagpur vs. Ballarpur Industries Ltd. [2007 (215) ELT 489 (SC)] 2.14 Further, in any case, there is no applicability of the referred Rule 8 of CCR in the present case for absence of any merger, amalgamation etc. or for that manner any two separate legal entities. Thus, reference to Rule 8 of the CCR is completely unfounded and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... santo Manufacturer Pvt.Ltd. [2004 (35) S.T.R. 177 (All.)] 2.21 Also, the issue involves interpretation of law. There are a number of judgements of the Tribunals and High Courts touching upon the issue raised by the department. Thus, issue being of interpretation of law, extended period of limitation cannot be invoked. Appellant being a PSU under the Ministry of Steel, GoI, the allegation of committing any fraud, suppression or misrepresentation, etc. cannot be sustained. 2.22 The Appellant being a PSU, no mala fide intent can be attributed to it and there exists a presumption of their bona fide act, thus, neither the extended period of limitation is invokable nor the penalty is imposable against the Appellant. Further, since no demand is sustainable, there is no question of imposition of penalty or recovery of interest. In the following judgements, it has been held that PSU cannot be charged with intent to evade duty: a. CCE Channai-I v. Chennai Petroleum Corporation Ltd. [2007 (211) E.L.T. 193 (SC)] b. Indian Oil Corporation Ltd. v. Commissioner of C.Ex., Delhi [2017 (4) G.S.T.L. 190 (Tri.-Del.)] 3. The Ld.Authorized Representative for the Respondent Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit. (1) if a manufacturer of the final products shifts his factory to another site or the factory is transferred on account of change in ownership or on account of sale, merger, amalgamation, lease or transfer of the factory to a joint venture with the specific provision for transfer of liabilities of such factory, then the manufacturer shall be allowed to transfer the CENVAT credit lying unutilized in his accounts to such transferred, sold, merged, leased or amalgamated factory. (2) The transfer of the CENVAT credit under sub-rule (1) shall be allowed only if the stock of inputs as such or in process, or the capital goods is also transferred alongwith the factory to the new site or ownership and the inputs, or capital goods, on which credit has been availed of are duly accounted for to the satisfaction of the [Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be]. 8. Factory in terms of Section 2(e) of the Central Excise Act includes any number of inputs within the same premises irrespective of the number of Central Excise registrations. Thus no distinction between the Rourkela Steel Plant (RSP) and Rourkela Fertilizer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct in the said case it was observed by the Bombay High Court that as the Notification uses the word factory and it uses the word industrial unit, it must, therefore, be assumed that the words were intended to bear different meanings. Put differently the words Industrial Unit must mean something other than factory . Similar was the situation in the case of Dhampur Sugar Mills, 1998 (26) RLT (669). Accordingly we hold that the benefit of Notification No. 67/95 is available to the Appellants as the excisable goods have been used in the factory of manufacture only. Both the appeals are thus allowed. 9. The Appeal filed against the aforesaid decision of the Tribunal before the Hon ble Supreme Court was dismissed, wherein it was observed that : We do not find any merit in this civil appeal filed by the Department. Apart from the reasons given in the impugned judgment by the Tribunal, we find that in the present case, the show cause notice given by the Department itself proceeds on the basis that the factory of the assessee consisted of different units (plants); that it was one single factory consisting of separate units; that sugar and molasses came under one of the units, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de herein above that there was no deliberate intention on the part of the appellant not to disclose the correct information or to evade payment of duty, it was not open to the Central Excise Officer to proceed to recover duties in the manner indicated in proviso to Section 11A of the Act. We are, therefore, of the firm opinion that where facts were known to both the parties, as in the instant case, it was not open to the CEGAT to come to a conclusion that the appellant was guilty of suppression of facts . In Densons Pultretaknik v. Collector of Central Excise [2003 (11) SCC 390], this Court held that mere classification under a different sub-heading by the manufacturer cannot be said to be willful mis-statement or suppression of facts . This view was also reiterated by this Court in Collector of Central Excise, Baroda v. LMP Precision Engg. Co. Ltd. [2004 (9) SCC 703]. 12. I further observe that on identical issue the Show Cause Notice has been adjudicated in favour of the Appellant and has attained finality in the absence of any challenge by the Department. The subsequent notice cannot be issued beyond limitation as held by the Hon ble Supreme Court in the case of Nizam Suga ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
