Custom, Excise & Service Tax Tribunal
Corn Products Co. India Ltd vs Commissioner Of Central Excise on 17 July, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH
CHENNAI
Appeal No. E/195/2005
[Arising out of Order-in-Original (De Novo) No.29/2004 (COMMR) dt. 25.11.2004 passed by the Commissioner of Central Excise, Coimbatore]
Corn Products Co. India Ltd. Appellant
Versus
Commissioner of Central Excise,
Coimbatore Respondent
Appearance:
None For the Appellant Shri L. Paneer Selvam, AC (AR) For the Respondent CORAM : Honble Shri R. Periasami, Technical Member Honble Shri P.K. Choudhary, Judicial Member Date of Hearing/Decision : 17.7.2015 FINAL ORDER No.40775/2015 Per R. Periasami
Appellant has not appeared on earlier occasions. Today, when the case was called, none appeared for the appellant despite notice. The appeal being old, therefore, it is taken up for disposal and decision on merits.
2. The issue relates to imposition of penalty on the appellant who is one of the co-noticees in the impugned order. Penalty of Rs.50,000/- has been imposed on the appellant under Rule 209A of CER.
3. Appellant was a job worker for the principal manufacturer M/s.Gopal Repackers. In the impugned order dt. 25.11.2004 the adjudicating authority confirmed the demand of Rs.25,79,592/- against M/s.Gopal Repackers and also imposed penalty on them as well as imposed penalty on the appellant. He also imposed penalty on M/s.VG Rajamani & Co., Proprietor and also on M/s.Subramania Chemicals Co. P. Ltd.
4. After hearing the Ld. AR for Revenue, we find that this Tribunal vide Final Order No.608/2006 dt. 13.7.2006 has already set aside the very same impugned order and set aside the demand and penalty against M/s.Global Repackers, the principal manufacturer [2008 (11) STR 546 (Tri.-Chennai)]. The relevant paragraphs of the said final order is reproduced as under :-
"2.?After examining the records and hearing both sides, we find that the challenge offered by the appellant to the Commissioners order is irresistible. The following submissions of their Counsel merit serious consideration :-
(a) The impugned order fixing duty liability on the appellant is beyond the scope of the show-cause notice, wherein duty had been demanded from another party viz., M/s. CPCIL.
(b) The findings recorded by the lower authority in the context of considering the plea made by the appellant for valuation of the goods in terms of the Honble Supreme Courts ruling in the case of Ujgar Prints are diametrically against his own findings recorded in the context of fixing duty liability.
(c) In Circular No. 21/70, dated 4-6-1970, it had been clarified by the Ministry that no further duty liability arose on the re-packing of duty-paid Glucose or Dextrose even if some other ingredients such as Calcium Phosphate and Vitamin D were added before the packing.
It was only as late as in 1990 that a different view was taken by the Board vide Circular No. 7/90-CX. l, dated 7-3-1990, wherein the product resulting from addition of Calcium Phosphate and Vitamin D to Dextrose monohydrate was held to be dutiable as a distinct goods classifiable under SH 1702.21 of the CETA Schedule. As the period of dispute (barring 2 months) is prior to issuance of the second circular, the appellant must get the benefit of the first circular. We have heard learned SDR also with reference to the above points raised by learned Counsel.
3.?It appears from the records that all the points raised by learned Counsel for the appellant are eminently valid. We have already mentioned the nature of the allegations contained in the show-cause notice. They were to the effect that the goods in question were manufactured and cleared by M/s. CPCIL. No corrigendum to the notice was ever issued. When it ultimately came to be adjudicated upon by learned Commissioner in the second de novo proceedings, he chose to caste duty liability on the appellant, which is clearly unsustainable in law. On this fundamental ground, the present appeal succeeds. We need not examine the other points. The impugned order is set aside and this appeal is allowed with consequential reliefs."
In view of the factual position that the Tribunal has set aside the order & demand and penalty on the main appellant, the imposition of penalty on the co-noticee is liable to be set aside. Accordingly, the penalty is set aside and the appeal is allowed.
(Dictated and pronounced in open court)
(P.K. CHOUDHARY) (R. PERIASAMI)
JUDICIAL MEMBER TECHNICAL MEMBER
gs
3