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

Amendment of plaint under Order VI Rule 17 of the CPC explained

Cause Title :  Ganesh Prasad vs Rajeshwar Prasad, SLP (C) NO. 28377 OF 2018, Supreme Court Of India Date of Judgment/Order : 14/3/2023 Corum : J. B. Pardiwala, J. Citied:  Revajeetu Builders and Developers v. Narayanaswamy & Sons and Others reported in (2009) 10 SCC 84 North Eastern Railway Administration, Gorakhpur v. Bhagwan Das reported in (2008) 8 SCC 511 P.A. Jayalakshmi v. H. Saradha and Others reported in (2009) 14 SCC 525 B.K. Narayana Pillai v. Parameswaran Pillai and Another reported in (2000) 1 SCC 712 A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation reported in AIR 1967 SC 96 Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Another, Civil Appeal No. 5909 of 2022 dated 01.09.2022 Firm Sriniwas Ram Kumar v. Mahabir Prasad and Others reported in AIR 1951 SC 177 G. Nagamma and Another v. Siromanamma and Another reported in (1996) 2 SCC 25 Praful Manohar Rele v. Krishnabai Narayan Ghosalkar and Others reported in (2014...

Owner of vehicle is not expected to verify the genuineness of the driving license before appointing a driver

Cause Title : Rishi Pal Singh Versus New India Assurance Co. Ltd & Ors., Civil Appeal No. 4919 Of 2022, The Supreme Court Of India Date of Judgment/Order : July 26, 2022 Corum : Hemant Gupta; J., Vikram Nath; J. Background the truck owned by the appellant met with an accident. The owner deposed before the court that before employing the driver, he had taken his driving test and that he was driving the vehicle satisfactorily and  that the driver was employed with him for 3 years before the date of the accident. He produced his driving license. This was reaffirmed by the driver who deposed that the driving license was obtained from the driver and it was issued from Nagaland, but no such license was produced on record. Both the Motor Accident Claims Tribunal and the High Court have held that the owner has alleged that the driver had a driving license from Nagaland but the same was not produced and therefore, the Insurance Company is entitled to recover the awarded amount...

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...