Custom, Excise & Service Tax Tribunal
M/S. Oscar Remedies Pvt. Limited vs Commissioner Of Central Excise & St, ... on 6 July, 2017
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH 160 017 COURT NO. I Appeal No. E/2347-2348/2011-DB Date of Hearing/ Decision : 06.07.2017 [Arising out of Order-in-Appeal No. OIA-14-15/COMMR/PKL/2011 dated 30.06.2011 passed by the Commissioner (Appeals) Central Excise & ST, Panchkula] For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. Devender Singh, Member (Technical) M/s. Oscar Remedies Pvt. Limited : Appellant Shri Navdeep Dhingra, Director vs. Commissioner of Central Excise & ST, Panchkula : Respondent
Appearance:
Shri Vikrant Kackriya, Advocate for the Appellant(s) Shri Harvinder Singh, A.R. for the Respondent(s) CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. Devender Singh, Member (Technical) Final Order No. 61229-61230 / 2017 Per : Ashok Jindal The demand of Rs. 1,51,33,750/- has been confirmed against the appellant along with interest and penalties have also been imposed on the appellants. Aggrieved from the said order, the appellants are before us.
2. The facts of the case are that the appellant is engaged in the manufacturing of medicines, injections and eye drops. An investigation was conducted by the Income Tax department against the appellants and appellants surrendered certain income with the Income Tax department. The Income Tax department intimated to the Central Excise department about the said fact of surrendering of income. On the basis of intimation received from the Income Tax department summons were issued to the appellants and statements were recorded. On the basis of the statements, a show cause notice was issued to the appellants treating the income surrendered before the Income Tax department, as income of sale of goods manufactured by the appellant and consequently the demand of duty thereof along with interest was confirmed and penalties were imposed.
3. Ld. Counsel appearing for the appellants submits that the income surrendered before the Income Tax department has been explained by the appellant that the cash received in the factory belongs to their father and some cash pertains to the investment made in the immovable property but no cognizance was taken by the authorities below. Moreover, no investigation was conducted at the end of appellant by the authorities below to ascertain the fact that appellant has manufactured excess goods or not. In that circumstance, relying on the decision in the case of CCE, Ludhiana vs. Mayfair Resorts 2011 (22) STR 263 (P&H), he submits that demands are not sustainable. He also relied on the decision in the case of Vardhman Chemtech Limited Final Order No. A/60931-60932/2016 dated 11.07.2016.
4. On the other hand Ld. AR reiterates the findings in the impugned order.
5. Heard both the sides and considered the submissions. We find that a similar issue has come up before this Tribunal in the case of Vardhman Chemtech Limited (supra) wherein the tribunal has observed as under:-
7. After hearing both the sides, we find that the short issue involved in the matter is that whether excise duty can be demanded on the basis of income surrendered before the Income Tax Authorities without adducing any independent evidence with regard to purchase of raw material, manufacture of finished goods and sale thereof or not?
8. The said issue came up before this Tribunal in the case of M/s Arisudana Industries Limited (Supra) wherein this tribunal has observed as under:-
8. As duty is payable on manufacture of the goods. Revenue have not come up with any positive evidence to shows that the appellant has manufactured excisable goods and cleared without payment of duty. In the absence of such evidence, duty cannot be demanded from the appellant. The same view was taken by this Tribunal in the case of Zalota Industries therefore, the duty cannot be demanded from the appellant according the demand of duty along with interest is set aside. As demand of duty is not sustainable, the question of imposing penalty does not arise.
9. On considering the facts that this issue has already been decided by this Tribunal holding that duty is payable on manufacture of goods and no evidence has been produced by the Revenue to that extent, therefore, without manufacturing the excisable goods and clearance the duty cannot be demanded from the appellants.
6. As the duty has been demanded from the appellant without adducing any evidence by the Revenue that the appellant has manufactured excess goods. The duty can be demanded on the manufactured goods only and not other activities. Therefore, in the absence of any evidence of excess manufactured goods, demand against the appellant is not sustainable. Accordingly, the impugned order is set-aside and the appeals are allowed with consequential relief to the appellant, if any.
(Order dictated and pronounced in the court) Devender Singh Member (Technical) Ashok Jindal Member (Judicial) KL 4 Appeal No. E/2347-2348/2011