Skip to main content

Demand cannot be sustained unless all relied documents have been furnished to Appellant to enable them to defend themselves

In Ess Ess Metals & Electricals Vs. CCE, Delhi-II, the Customs, Excise and Service Tax Appellate Tribunal held that demand cannot be sustained unless all relied documents have been furnished to Appellant to enable them to defend themselves

Appellant is engaged in manufacture of brass, zinc, nickel, tin and lead alloys falling under Tariff Subheading 74.03 of 1st schedule to Central Excise Tariff Act, 1985. Dispute pertains to the period 1st April, 1987 to 31st March, 1990. Show cause notice was issued for demand of Central Excise Duty amounting to Rs. 49,83,736/- along with a proposal for imposition of penalties under various rules as well as a proposal for confiscation of land, building, plant and machinery used in manufacture of excisable goods. Appellant was not discharging Central excise duty payable on goods viz. alloys of various nonferrous metals, by taking the view that, these metals as well as metal alloys remained classified in same tariff heading up to 13.5.1988 and hence, there can be no manufacture in conversion of metal into metal alloys. Revenue was of view that, conversion of non-ferrous metals into metal alloys would amount to manufacture in terms of Section 2(f) of Central Excise Act, 1944 both prior to 13th May, 1988 as well as for period subsequent thereto. Case was initially adjudicated by Commissioner in which Central excise duty demands stand confirmed. Impugned order stands passed by Commissioner in de novo proceedings in which duty demand as proposed in show cause notice stands confirmed along with penalty of Rs. 50 lakh under Rule 173Q.

Expression "manufacture" defined in Clause (f) of Section 2 of Act, includes any process incidental or ancillary to completion of a manufactured product; which is specified in relation to any goods in Section or Chapter notes of Schedule to Central Excise Tariff Act, 1985 as amounting to manufacture, and word "manufacturer" shall be construed accordingly and shall include not only a person who employs hired labour in production or manufacture of excisable, goods, but also any person who engages in their production or manufacture on his own account. It is thus clear that, "manufacture" includes any process under Section 2(f) of Act. As observed by this Court before more than four decades in Union of India & Another v. Delhi Cloth & General Mills Co. Ltd. & Ors., word "manufacture" is a verb which is generally understood to mean as "bringing into existence a new substance" and does not mean merely "to produce some change in a substance, however minor in consequence the change may be".

In Empire Industries Ltd. v. Union of India, it was held that taxable event under Excise Law is "manufacture". The moment there is transformation into a new commodity commercially distinct and separate commodity having its own character and name, whether be it the result of one process or several processes, "manufacture" takes place and liability to excise duty under Section 4 is attracted. In light of decision of Apex Court, there is no scope for argument that conversion of metal into alloys does not amount to manufacture. Central Excise duty is liable to be paid on finished product cleared from Appellant's factory.

It is a settled position of law that, demand cannot be sustained unless all relied upon documents have been furnished to Appellant to enable them to defend themselves fairly. Consequently, wherever relied upon documents have not been supplied to Appellant, demand of excise duty is liable to be set-aside. For this purpose, matter remanded to original adjudicating authority who will re-compute demand after excluding demands attributable to documents whose copies have not been made available to Appellant. On question of eligibility of Modvat credit, Apex Court's decision clearly lays down that, assessee will be entitled to Modvat benefits, if otherwise eligible. In de novo proceedings, adjudicating authority will extend benefit of Modvat credits subject to satisfaction of conditions to be fulfilled by Appellant in this regard. Appellant should be given an opportunity for putting forth their claim for Modvat credit supported by necessary documents. Similarly, benefit of SSI notification will also be allowed subject to fulfilling conditions specified therein. Charge of manufacture s upheld and matter remanded to adjudicating authority for re-quantification of demand.

Comments

Most viewed this month

The recovery of vehicles by the financier not an offence - SC

Special Leave Petition (Crl.) No. 8907  of 2009 Anup Sarmah (Petitioner) Vs Bhola Nath Sharma & Ors.(Respondents) The petitioner submitted that  respondents-financer had forcibly taken away the vehicle financed by them and  illegally deprived the petitioner from its lawful possession  and  thus,  committed  a crime. The complaint filed by the petitioner had been  entertained  by  the Judicial Magistrate (Ist Class), Gauhati (Assam) in Complaint Case  No.  608 of 2009, even directing the interim custody of the vehicle (Maruti  Zen)  be given to the petitioner vide order dated  17.3.2009.  The respondent on approaching the Guwahati High  Court against this order, the hon'ble court squashed the criminal  proceedings  pending   before  the  learned Magistrate. After hearing both sides, the Hon'ble Supreme Court decided on 30th...

Court approached in the early stages of arbitration will prevail in all other subsequent proceedings

In National Highway Authority of India v. Hindustan Steelworks Construction Limited, the Hon'ble Delhi High Court opined that once the parties have approached a certain court for relief under Act at earlier stages of disputes then it is same court that, parties must return to for all other subsequent proceedings. Language of Section 42 of Act is categorical and brooks no exception. In fact, the language used has the effect of jurisdiction of all courts since it states that once an application has been made in Part I of the Act then ―that Court alone shall have jurisdiction over arbitral proceedings and all subsequent applications arising out of that agreement and arbitral proceedings shall be made in that Court and in no other Court. Court holds that NHAI in present case cannot take advantage of Section 14 of the Limitation Act, 1963 for explaining inordinate delay in filing present petition under Section 34 of this Act in this Court.

Procedure to be followed on admissibility of additional evidence at appeal stage

In The Corporation of Madras vs M. Parthasarathy & Ors., the trial court had allowed the respondent company to file evidence in the form of photocopies and had dismissed all the four suits filed by the respondents with costs as the evidence were in the form of photocopies and were objected to by the respondents. On appeal the Additional District Judge allowed the respondents to file additional evidence in the form the original documents of the earlier admitted photocopies and based on the same allowed the appeal. In its turn the High Court also dismissed the appeal filed by the appellants who in turn approached the Supreme Court. The Supreme Court decided that the first Appellate Court committed two jurisdictional errors in allowing the appeals.  Referring to earlier judgements of the Supreme Court in Land Acquisition Officer, City Improvement Trust Board vs. H. Narayanaiah & Ors., , Shalimar Chemical Works Ltd. vs. Surendra Oil & Dal Mills (Refineri...