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TMI Blog2024 (7) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... a fresh issue with the department and cannot ride on the back of the SCN already issued. The cause of the department also deserves fair and equal treatment at our hands. In the larger interest of the administration of justice, we feel that the raising of the mixed question of fact and law at this late stage cannot be permitted. The averments of the appellant on this issue is rejected. Levy of Excise duty twice - Cost of Copper Anode Mould having been subsumed in the cost of Copper Anode - HELD THAT:- Considering that the duty paid on inputs causes a cascading effect on the final price of the goods, government had introduced the MODVAT scheme to be later replaced by the CENVAT credit schemes so as to permit set-off of central excise duties paid by manufacturers on the inputs including capital goods purchased by them against the central excise duty payable on the final excisable goods manufactured and cleared by them. The benefit of credit under the schemes were in the nature of a concession given which could be availed only in the manner and in the circumstances mentioned in the respective rules. The Supreme Court has upheld double taxation wherever the legislative intent is clear. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s SKF India Ltd [ 2009 (7) TMI 6 - SUPREME COURT] held that interest was payable even in a case of short payment of duty which was indeed completely unintended and without any element of deceit etc. Hence interest is leviable on delayed or deferred payment of duty for whatever reasons. The liability gets extinguished only when the statutory payments are made as required by the statute - penalty imposed under Rule 25 of the Central Excise Rules, 2002 is set aside. Appeal allowed. - Hon ble Shri P. Dinesha , Member ( Judicial ) And Hon ble Shri M. Ajit Kumar , Member ( Technical ) Shri Akshit Malhotra , Advocate and Shri Vishal Agarwal , Advocate for the Appellant Shri N. Satyanarayanan , AC ( AR ) for the Respondent ORDER Per M. Ajit Kumar , The above appeal filed against Order in Appeal No. TNL-CEX-000-APP-063/2014 dated 17. 07. 2014 passed by the Commissioner of Central Excise (Appeals), Madurai. ( impugned order ) 2. Brief facts of the case are that the appellants are engaged in the manufacture of copper anodes falling under the Chapter No. 74 of CETA, 1985 from imported Copper Concentrate. The provisional value of copper anode mould adopted for the period from July 2001 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any, ought to be confined to Rs.94,446 per MT, confirmed by the Hon ble Tribunal in its Final Order dated 04.02.2016 in respect of the copper anodes cleared during the period July, 2001 to March, 2002. D. No penalty ought to have been imposed under Rule 25 of the Central Excise Rules, 2002 They stated that the impugned order is untenable and thus, deserves to be quashed. The detailed averments made will be examined will discussing the issues concerned. 3.2 The Ld. AR reiterated the findings in the impugned order. He prayed that the appeal may be dismissed. 4. Heard both sides. We shall now examine the issues raised. 5. Copper anode moulds are not excisable products as the same are not marketable and thus, will not attract levy of any excise duty. 5.1 The appellant s counsels have stated that during the manufacture of copper anodes, copper anode moulds were used which had a shelf life of 20-25 days. They were mainly captively consumed. However, at times, the said moulds were also cleared to their Silvassa unit for recasting of the defective anodes, which were supplied by them. Appellant used to clear the copper anode moulds on payment of appropriate duty of excise by adopting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question here is that when the appellant acquiesced and paid duty at the time of clearance of the impugned goods and never challenged the excitability before the Original Authority or at the first stage of appeal, can he be allowed to raise it before us? The power of the Tribunal is a discretionary one. The Tribunal has jurisdiction to examine a question of law which arises from the facts as found by the authorities below and having a bearing on the tax liability of the assessee. To be a question of law arising from the case there must be first a foundation for it laid in the SCN and the question should emerge from the sustainable findings of fact arrived at by the Original Authority. 5.3 In this case the question of law depends on the question of fact of marketability which was not an issue in dispute ever raised either in the SCN or by the appellant before the Original Authorities, although the issue went through a series of litigation and included the Deputy Director (Cost) arriving at the value of the moulds based on the CAS-4 method. 5.4 Just like the Tribunal has the power to permit a new question of law to be raised for the first time before it, the Tribunal also has an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of time limits on the demand for duty etc adversely affecting Revenue. Hence though the Appellant would not estopped from contesting the excisability of the goods in question, they have to raise it as a fresh issue with the department and cannot ride on the back of the SCN already issued. The cause of the department also deserves fair and equal treatment at our hands. In the larger interest of the administration of justice, we feel that the raising of the mixed question of fact and law at this late stage cannot be permitted. The averments of the appellant on this issue is rejected. The judgments cited by them do not come to their help in the circumstances. 6. Cost of Copper Anode Mould having been subsumed in the cost of Copper Anode, the Department cannot levy excise duty twice. The Counsels for Appellant submits an alternate argument that it is on record that there was no bifurcation of costs or separation of costs between the copper anodes and the copper anode moulds either in the balance sheet, profit and loss account, and/ or in any other records. All the costs were in relation to and were factored in for the copper anodes. Even the impugned order as well as the adjudication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y them against the central excise duty payable on the final excisable goods manufactured and cleared by them. The benefit of credit under the schemes were in the nature of a concession given which could be availed only in the manner and in the circumstances mentioned in the respective rules. 6.3 In fact, the Supreme Court has upheld double taxation wherever the legislative intent is clear. In the case of Premier Tyres Ltd. vs. CCE, Cochin [1987 (28) ELT 58 (SC)], relating to Central Excise input tax credit, the Supreme Court held that the language of the notification is so clear that it permits a situation where input credit is not allowed, leading to double taxation. Therefore, there is nothing illegal about it. The relevant extract of the said judgment is as follows: 4. . .There is no general principle that there can be no double taxation in the levy of Excise Duty. The court may lean in favour of a construction which will avoid double taxation but in the present case there does not appear to be any lean question of construction at all. 6.4 Further, in the case of Hind Plastics v. C.C. Bombay [1994 SCC (5) 167] the Supreme Court held that taxing of packing material twice, (once a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001 to March, 2002, has held the value to be taken for the purpose of levying excise duty was Rs. 94,446/- MT. Going by the Revenue s own case that value of the copper anodes is only to be adopted for value of the copper anode moulds as well, the value of copper anode moulds also ought to be valued at Rs. 94,446/- per MT as against Rs. 1,09,962/- per MT, upheld in the impugned order. In view thereof, the demand confirmed and upheld in the impugned order is untenable. 7.2 We find that Tribunal vide its Final Order dated 04.02.2016 had at para 8, determined the assessable value of copper anodes for the period July, 2001 to March, 2002 at Rs. 94,446 MT. We find from para 2.2 of the OIO dated 30/03/2009 that the composition of copper anode and copper anode mould are one and the same. As per para 14, the appellant have also themselves submitted a combined CAS-4 value in respect of Copper Anode and mould for the period from 01/07/2001 to 31/03/2002, thereby indicating that the value of copper anode and copper anode mould are one and the same. We hence agree with the appellant that the value of copper anode mould as decided in Tribunal vide its Final Order dated 04.02.2016 for the same p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the CEGAT Order [Autolite (India) Ltd. v. Commissioner - 2003 (154) E.L.T. A169 (S.C.)]. Hence the appellant is liable to pay duty. 8.4 As regards the payment of interest we find that whenever the payment of interest is mandated by the statute, it automatically come into play, when the happening or non-happening of an event mentioned in the relevant section of the statute occurs. The Hon ble Supreme Court in Commissioner Of Central Excise, Pune Vs M/s SKF India Ltd [2009-TIOL-82-SC-CX] held that interest was payable even in a case of short payment of duty which was indeed completely unintended and without any element of deceit etc. Hence interest is leviable on delayed or deferred payment of duty for whatever reasons. The liability gets extinguished only when the statutory payments are made as required by the statute. 9. In the circumstances the impugned order is upheld with the following modifications; (A) the assessable value of copper anode mould shall be taken at Rs.94,446/- per MT as discussed at paras 7 to 7.2 above. Duty and interest shall be reworked out and paid accordingly. (B) the penalty imposed under Rule 25 of the Central Excise Rules, 2002 is set aside. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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