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TMI Blog2024 (6) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... the department revolves around the wrong financial year mentioned in Annexure-I certificate - There is no allegation that excess goods have been cleared. The only allegation is that the financial year mentioned does not match with the invoices. The same financial year has been copied continuously in most of the Certificates. The notification or Rules does not put forward any condition to mention financial year. In the present case, it is the manufacturer buyer who has to make the application before the AC/DC of his jurisdiction. The said application is forwarded to the appellant who has to mention the details of clearances and submit a copy of this application to the Range Superintendent of his jurisdiction - The said application having been verified by the concerned officers of his jurisdiction, the financial year for the specified quantity of goods is not a relevant criteria for the reason that all these clearances are supported by invoices and detailed description of the goods cleared. So, also verified by the jurisdictional authorities of the manufacturer buyer. The demand of duty has been made on a minor infraction of wrongly stating the financial year in the application. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty under Rule 25 of the Central Excise Rules 2002. Against such order, the appellants approached the Commissioner (Appeals) who vide order impugned hearing upheld the order passed by the adjudicating authority. Hence, this appeal. 2. The Ld. Counsel Ms. Nimra Ali, appeared and argued for the appellant. 2.1. The Appellant had cleared paper boards to various buyers during the impugned Period by availing exemption under Notification 43/2001 -CE(NT) dated 26.06.2001. The said clearances were made against Annexure-I Certificates issued under the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 ('2001 Rules') received from the buyers. The buyer undertakes to use the goods for the intended purpose i.e., export and accordingly, the said goods are used for export only. The Impugned Order does not allege that the goods are not used for export. Case of the Department: 2.2 It is the case of the Department that the Appellants have received the Annexure 1 Certificates from buyers only for the financial year 2007-2008, however, the goods have been cleared beyond the said financial year thereby violating the conditions stipulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 (4) TMI 666 CESTAT Mumbai. M/S. Metalink v. Commissioner of' Customs, Kolkata, 2018 (6) TMI 1375-CESTAT Kolkata. A.6 On this ground itself, the Impugned Order merits to be set aside. B. Without prejudice, as per the Notification r/w Rule 3(4) and Rule 6 of the 2001 Rules, only the buyer is liable for any contravention of the conditions stipulated in the Notification. The security bond in this regard is also executed by the buyer. Thus, excise duty, if any, should be recovered only from the buyer. C. Extended period cannot be invoked and the demand of Excise duty to the extent of Rs. 20,25,387/- is barred by limitation: C.1 The Appellant submits that the period involved in the present dispute is from April 2008 to February 2013 and the SCN for the same was issued only on 06.05.2013 by invoking the extended period of limitation under Section I IA of the Central Excise Act, 1944. C.2 In this regard, it is submitted that during the impugned Period, the Appellant was duly registered with the Department and was filing E.R. 1 Returns periodically. The fact of clearance of goods against Annexure-I Certificates was duly recorded in the E.R. 1 Returns which is at Page 204 (Vol-l of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Act, 1944 r/w. Rule 25 of the Central Excise Rules, 2002, Mens rea is necessary and when no fraud/suppression/misstatement is alleged and proved, penalty cannot be imposed. Reliance in this regard is placed on the following cases: Comm. Ofc. Ex., Chandigarh v. Pepsi Foods Ltd, 2010 (260) E.L.T. 481 (S.C.). Hindustan Steel Ltd. vs. the State Orissa 1978 (2) ELTJ159 (SC). , Kellner Pharmaceuticals Ltd. v. CCE, 1985 (20) ELT80. D.2 In light of the same interest and penalty imposed on the Appellant merits to be set aside. E. Without prejudice, the Impugned Order has erroneously confirmed the demand of excise duty to the extent of Rs. 6,50,991/-: E.1 The Appellant submits that assuming without admitting that the allegation raised by the Department is true, even then, the Impugned Order has incorrectly confirmed the demand to the extent of Rs. 71,252/- for the clearances made within the financial year 2010-2011 as per the Annexure-I Certificate. A worksheet evidencing the same is enclosed as Annexure 1. E.2 Further, certain Annexure-I Certificates allowed procurement of goods within one year from the date of issue . However, the Impugned Order has incorrectly confirmed the demand to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition number (ii) specifically states that provisions of the central excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules 2001 has to be followed. The appellants have not adhered to these rules. When a law describes a thing to be done in a particular manner, it has to be done in that manner alone. Since the clearances do not conform to the financial year mentioned in the application (Annexure-I), the demand of duty for the clearances beyond the period mentioned in the application is legal and proper. It is submitted that the non-payment of duty would not have come to light but for the verification done by the central excise officers. In such circumstances, the demand of duty raised invoking the extended period is also proper. The Ld. AR prayed that the appeal may be dismissed. 5. Heard both sides. 6. The issue to be decided is whether the demand of duty alleging that the clearances are made beyond the period mentioned in Annexure-I certificate is sustainable or not. 6.1 The facts reveal that the appellant had cleared goods during the relevant period to various buyers without payment of duty availing the benefit of Notification No.43/2001-C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit of this notification shall register himself under rule 9 of the Central Excise No.2) Rules, 2001; (ii) provisions of the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 shall be followed, mutatis mutandis; (iii) the manufacturer or processor shall, while filing declaration under the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001, also declare ratio of input and output and rate of duty payable on excisable goods to be procured without payment of duty; (iv) the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise shall also verify the correctness of the ratio of input and output and other particulars mentioned in the declaration filed before commencement of export of such goods. He may, if necessary, call for samples of finished goods or inspect such goods in the factory of manufacture for verifying the declarations. He shall, after being satisfied about the correctness of declarations, countersign the application in the manner specified in the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turer buyer is correct. That as there is no allegation of excess clearances, the benefit of notification ought not to be denied for wrong mention of financial year. This argument advanced by the Ld. Counsel for appellant that the requirement to mention the financial year is only a procedural one for which the substantive benefit of notification cannot be denied is not without force. 13. In the present case, it is the manufacturer buyer who has to make the application before the AC/DC of his jurisdiction. The said application is forwarded to the appellant who has to mention the details of clearances and submit a copy of this application to the Range Superintendent of his jurisdiction. It can be seen that the Annexure-I is an undertaking given by the manufacturer (buyer) guaranteeing the specified quantity and intended purpose of the goods received by him from the appellant. The said application having been verified by the concerned officers of his jurisdiction, the financial year for the specified quantity of goods is not a relevant criteria for the reason that all these clearances are supported by invoices and detailed description of the goods cleared. So, also verified by the juri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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