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TMI Blog2024 (5) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... Similar issue has been considered by this Tribunal in the case of SRI VENKATESA PAPER BOARDS LTD. VERSUS COMMISSIONER OF C. EX., MADURAI [ 2008 (7) TMI 169 - CESTAT, CHENNAI] where it was held that ' The expression supplied against a purchase order placed upon such manufacturer by a newspaper does not necessarily mean that the manufacturer should supply newsprint directly to a newspaper. What was intended by the amendment was that the supply of newsprint to a newspaper must be against a purchase order placed by the latter. It could either be direct or through a depot.' It is also observed that the factory is the place of removal as per Section 4 of Central Excise Act, 1944, however, at the same time any other place from where the goods is sold after removal from the factory, the said place is also a place of removal. Therefore, whether the goods are sold from the factory or from any other place from where the goods were sold, both are statutorily considered as place of removal. Therefore, the goods sold from godown to newspaper after clearance from the factory will not take a different colour as far as the classification of goods under 4801 read with Notification No. 23/19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared 6182.799 MT newsprint reels by showing depot transfer on payment of paper cess at the rate of 0.125%, education cess @ 2% and Higher and Secondary Education Cess @ of 1%. The said clearance on payment of cess was clearly indicated in their monthly ER-1 return. On verification of monthly ER-1 return proceedings were initiated against the appellant to demand excise duty on the quantity of newsprint reel cleared by the appellants to the depot during the period from November, 2008 to June, 2009. Thereafter, the show cause notice dated 08.12.2019 came to be issued to deny the benefit of Notification No. 23/1998-CE dated 01.08.1998 to the appellant on the grounds that the condition of the said notification are not fulfilled in as much as the goods cleared by the appellant can be treated as newsprint only when the same were supplied against the purchased order placed on the appellant by newspaper which is registered by the Registrar of Newspaper for India. According to the show cause notice since the goods were cleared to the depot and at the time of removal from the factory to the depot, the same was not supplied against the purchase order placed upon the appellant by the newspaper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oards Ltd vs. Commissioner of Central Excise, Madurai 2008 (231) ELT 459 (Tri.- Chennai). 2.2 He further submits that assuming without admitting the said goods in question are not newsprint of Chapter 4801, however, the department has not suggested any alternative classification so as to demand excise duty in absence of classification of product, demand of duty is not sustainable. 2.3 He also submits that there is no suppression or mis-statement of fact and also there is no contravention of any provisions of Central Excise Rules. The entire case is made out on the basis of scrutiny of ER-1 return also the show cause notice has been issued within the period of 1 year and therefore element of suppression of fact cannot be sustained. On this ground alone, the penalty is liable to be set aside. 3. Shri Ajay Kumar Samota, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the records. We find that the adjudicating authority confirmed the demand in the impugned order on the following grounds:- (a) The compliance of the conditions of the notification is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the factory it was not removed against the purchase order but since the same goods were sold from godown against the purchase order as prescribed under clause (b) of the Notification, the condition at clause (b) stands satisfied. 4.4 We find that the first requirement is that the subject goods must be intended for newspapers. It is not the case of the department in the show cause notice that the goods are not intended for printing of newspapers. The second condition may be read as under:- Manufactured by a manufacturer of newsprint specified under Schedule of the Newsprint Control Order, 2004 and supplied against a purchase order placed upon such manufacturer by a newspaper which is registered by the Registrar of Newspaper for India under the provisions of the Press and Registration of Books Act, 1867 (25 of 1867) i.e. is to say subject goods should be manufactured by the manufacturer of newsprint under Schedule of Newsprint Control Order, 2004. The fact that the appellants are such a manufacturer is not in dispute. The paper cleared from the factory to godown has ultimately been removed to newspaper, the nature of goods when removed was newsprint. Merely because at the interme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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