Custom, Excise & Service Tax Tribunal
Cce, Coimbatore vs M/S. Ooty Bakers & Confectioners (P) Ltd on 4 April, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
E/117/2001 (By Deptt.) and
E/361/2004 (By Assessee)
(Arising out of Order-in-Appeal No.67/2000-CBE (GVN) dated 11.10.2000 passed by the Commissioner of Central Excise (Appeals), Trichy and Order-in-Appeal No. 322/2003-CE (SLM) dated 9.12.2003 passed by the Commissioner of Central Excise (Appeals), Salem)
For approval and signature:
Honble Mr. P. G. Chacko, Member (Judicial)
Honble Mr. P. Karthikeyan, Member (Technical)
1. Whether Press Reporters may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
CCE, Coimbatore
M/s. Ooty Bakers & Confectioners (P) Ltd. Appellants
Vs.
M/s. Ooty Bakers & Confectioners (P) Ltd.
CCE, Coimbatore Respondents
Appearance Shri T. Ramesh, Advocate for the Assessee Smt. R. Bhagyadevi, SDR, for the Revenue CORAM Honble Mr. P. G. Chacko, Member (J) Honble Mr. P. Karthikeyan, Member (T) Date of Hearing: 04.04.2008 Date of Decision: 04.04.2008 Final Order No. ____________ Per P. G. CHACKO In adjudication of a show-cause notice dated 29.12.1998 for the period September 1997 to May 1998, the original authority had confirmed against the assessee demand of duty of Rs.64,110/- by invoking the extended period of limitation under Section 11A of the Central Excise Act and had imposed on them equal amount of penalty under Section 11AC of the Act. The demand of duty was consequential to denial of SSI benefit on the ground such benefit was not admissible to the goods in question which had been cleared under another persons brandname. The extended period of limitation was invoked on the ground that the use of another persons brandname had been wilfully suppressed before the department with intent to evade payment of duty. Against the order of adjudication, the assessee preferred appeal to the Commissioner (Appeals) and the latter by Order-in-Appeal No. 67/2000 dated 11.10.2000 sustained the demand of duty but vacated the penalty. Against the appellate order sustaining the demand of duty, the assessee preferred appeal to this Tribunal [Appeal No. E/190/2001], while against the same order vacating the penalty, the department also filed appeal [E/117/2001]. The assessees appeal was disposed of as per Final Order No. 1302/2001 dated 8.8.2001 of this Bench remanding the case to the lower appellate authority for fresh decision on the limitation issue. The Revenues appeal, E/117/2001, against Order-in-Appeal No. 67/2000 ibid is presently before us.
2. Pursuant to the above remand order of this Bench, the Commissioner (Appeals) by Order-in-Appeal No. 322/2003 dated 9.12.2003 sustained the demand of duty for the extended period also after finding that there was deliberate suppression of facts on the part of the assessee with intent to evade payment of duty. The assessees appeal before us [E/361/2004] is against Order-in-Appeal No. 322/2003 ibid.
3. After examining the records, we note that, on merits, the assessee has been found to be ineligible for SSI benefit in respect of the branded goods for the period of dispute. In other words, the duty liability of the assessee stands settled against them. After the remand order dated 8.8.2001 of this Bench, the only surviving issue is whether the extended period of limitation under Section 11A of the Act was liable to be invoked in this case. On that issue the lower appellate authority has returned a decision against the assessee, against which the main objection raised in the present appeal of the assessee is that the lower appellate authority acted beyond the scope of the remand order. According to the appellants, the Commissioner (Appeals) should have recorded a finding that duty was demandable only for the normal period of six months. In other words, according to the assessee, this Tribunal had already arrived at such a finding in its remand order and the Commissioner (Appeals) was required to reiterate that finding. This submission of the appellants, reiterated by their counsel, cannot be accepted. The remand ordered by this Bench in Final Order dated 8.8.2001 was for de novo decision on the limitation issue and, accordingly, the lower appellate authority has rendered decision on the said issue, which is very much within the scope of the remand order.
4. The question now to be considered is whether the decision of the lower appellate authority on the limitation issue can be accepted on merits. Learned counsel has submitted that, as the brandname had been assigned to them, the appellants believed bonafide that they were entitled to the benefit of SSI exemption notification. No brandname was affixed on the goods, nor was any brandname affixed on the cartons which were used as packing material for the goods. The polythene carry bags on which the brandname was printed was not considered to be packing material. In these circumstances, the assessee had every reason to believe that they were not clearing goods affixed with another persons brandname and therefore they were not barred from availing SSI benefit. We have found force in this case of the assessee, which has not been successfully rebutted. It is also noted that the assessee had availed the benefit of SSI exemption notification after filing the requisite declaration with the department. In this connection, it is the case of the Revenue that, in that declaration, the assessee did not disclose the fact that they intended to clear their product affixed with another persons brandname. It is alleged that this suppression was made with intent to evade payment of duty. We have already found that the assessees plea of bona fide belief that they were not barred from availing SSI benefit stands proved. Therefore, they cannot be held to have suppressed anything with intent to evade payment of duty. Apparently, it was the above bona fide belief of the assessee that stood in the way of their declaring anything with regard to the branded goods.
5. For the aforesaid reasons, we set aside Order-in-Appeal No.322/2003 and hold that there can be no demand of duty from the assessee for the period beyond six months. The assessees appeal is allowed.
6. Now that the demand of duty for the extended period of limitation stands set aside, there is no question of imposing any penalty on the assessee under Section 11AC of the Act and hence the Revenues appeal gets dismissed.
(Operative portion of the order was
pronounced in open court on 4.4.2008)
(P. KARTHIKEYAN) (P.G. CHACKO)
Member (T) Member (J)
Rex
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