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Case Number

Appeal No. E/1290 of 2009 and Application No. E/S/1329 of 2009

Advocates

Shri P.M Dave, Advocate
Shri Sameer Chitkara, SDR

Judges

B.S.V Murthy, Member (Technical)
Ashok Jindal, Member (Judicial)

Acts

Central Excise Rules

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The appellant is a 100% Export Oriented Unit (EOU) engaged in the manufacture of agro-chemicals and S.O. dyes. Besides exports, the appellant cleared part of its production into the Domestic Tariff Area (DTA) after obtaining permission from the Development Commissioner and availing benefits under Notification No. 23/2003-CE dated 31.3.2003 (as amended), which provides a concessional rate of duty subject to stated conditions.

For some periods the appellant did not need Development Commissioner permission because it was a recognized star export house. The Department initiated investigations to determine whether DTA clearances were in accordance with the notification. A show cause notice was issued, and the impugned adjudication held that for certain agro-chemicals and VAT dyes manufactured during 2003-04 to 2008-09 the appellant was not eligible for the notification benefit. The adjudication confirmed a duty demand of Rs. 3,31,23,535 and imposed a penalty equal to that amount.

Legal Issues Presented

Whether the Central Excise Commissioner exceeded jurisdiction by re-determining eligibility for DTA clearances after the Development Commissioner had granted permission.
Whether the definition of "similar goods" in the Customs Valuation Rules (and related reliance on a Board Circular) can be applied to assess eligibility under Notification No. 23/2003-CE.
Whether the extended period for demand (i.e., beyond the normal limitation) could be invoked in the facts of this case.
Whether the departmental reliance on the statement of an officer of the appellant (Shri Manohar Maheshwari) justified the demand and classification of goods for the purposes of denying the notification benefit.

Arguments of the Parties

Appellant's Arguments

The Commissioner exceeded jurisdiction by deciding eligibility for DTA clearances despite the Development Commissioner's permission; Central Excise authorities cannot sit in judgment over the Development Commissioner's decision.
The department improperly relied on the definition of "similar goods" in the Customs Valuation Rules and a 2008 Board Circular; prior to that clarification there was no such requirement and the clearances complied with the Notification.
The appellants had submitted quarterly returns and copies of invoices (though not statutorily required), which showed compliance; the Commissioner improperly disregarded these submissions.
Authority relied upon by the Department (i.e., Customs Valuation Rules definition) is inconsistent with Supreme Court decisions (NAT Steel Equipment Pvt. Limited, 1999 (34) ELT 8; Collector of Central Excise, Shillong vs. Wood Craft Products Limited, 1995 (77) ELT 23) and a Tribunal decision (CCE, Pune-1 vs. Telco, 2000 (126) ELT 1102). Those precedents, the appellant submitted, preclude using the Customs Act definition for a notification under a different enactment.

Department's Arguments

The departmental case relied on the statement of Shri Manohar Maheshwari, Dy. General Manager (Commercial), to the effect that VAT dyes, solvent dyes and OBA dyes are distinct categories, and that many agro-chemical products are specific to particular crops/soil/weather and are not interchangeable; on that basis the department treated categories as separate or as "similar" for its calculations.
The department contended that reliance on the Customs Valuation Rules' definition of "similar goods" is appropriate because there is no definition in the Central Excise Rules or in the Notification; the department also relied on a Board Circular issued in 2008.
On limitation, the department argued that the appellants cannot rely on copies of invoices (which were not statutorily required) to claim limitation protection; further, under the notification the Assistant Commissioner had to be satisfied before exemption could be held to be legitimately available, and therefore the extended period was invoked correctly.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
NAT Steel Equipment Pvt. Limited, 1999 (34) ELT 8 (Supreme Court)	As cited by appellant: establishes that a definition available under the Customs Act/Rules cannot be imported to interpret a notification issued under a separate enactment; meaning of "similar" should be drawn from common parlance or dictionary usage rather than from Customs Act definitions.	The court held that this precedent (and similar authorities) were applicable on ratio; the Commissioner had not considered the ratio. The Tribunal accepted that the Customs Act definition cannot be used for determining eligibility under the Notification and indicated that the issue requires item-by-item examination using ordinary/dictionary meaning.
Collector of Central Excise, Shillong vs. Wood Craft Products Limited, 1995 (77) ELT 23 (Supreme Court)	As cited by appellant: supports the proposition that definitions in the Customs Act/Rules are not to be mechanically applied to other enactments; interpretive approach requires ordinary meaning where appropriate.	The court treated this decision as relevant to the question of whether the Customs Valuation Rules' definition of "similar goods" could be applied to the Notification; it concluded the precedent's ratio militates against such importation and required the adjudicating authority to re-examine the issue.
CCE, Pune-1 vs. Telco, 2000 (126) ELT 1102 (Tribunal)	Referred to by the appellant on the factual contention that the goods in question are different; used to argue that similarity could not be assumed.	The court observed that the Commissioner had not adequately considered the precedents and that the Telco decision (along with the Supreme Court authorities) bears on the proper interpretive approach. The Tribunal ordered remand for item-wise examination rather than deciding similarity solely on Customs definitions.

Court's Reasoning and Analysis

The court analyzed two principal clusters of issues: (A) the applicability of the extended period for demand and (B) the proper approach to the concept of "similar goods" when assessing entitlement under the exemption Notification.

A. Extended Period / Limitation

The court found the invocation of the extended period unsustainable where the appellant had submitted quarterly returns identifying the exemption Notification and the quantities cleared to DTA. The court reasoned that such returns would enable the Central Excise officer to verify whether clearances conformed to the Notification's conditions.
Because the conditions of the Notification were known to both the officer and the appellant, and because the appellant had supplied available information (including mention of the Notification number and clearance quantities), the court held there was no suppression or mis-declaration justifying extended limitation.
The court observed that the department produced no evidence showing returns, declarations or other documents were incomplete or that facts were suppressed in a manner that would prevent the officer from making the correct assessment.
Consequently, the court concluded the extended period could not be invoked and any demand, if sustained, would be limited to one year from the date of the show cause notice. The court also indicated the matter was a fit case for waiver of pre-deposit.

B. Definition of "Similar Goods" and Use of Customs Valuation Rules

The court noted that the department relied on the Customs Valuation Rules' definition of "similar goods" and on a 2008 Board Circular (which the court observed had a different, more liberal purpose for DTA clearances under exemption notifications).
The appellant had cited Supreme Court and Tribunal authorities holding that definitions under the Customs Act should not be imported into a notification issued under another enactment; rather, ordinary/dictionary meaning should guide the interpretation of words like "similar."
The court found that the Commissioner had simply observed that the facts of the cited cases were different and had not engaged with the ratio concerning the meaning of "similar." The Tribunal concluded that the ratio of the cited decisions indeed supported the appellant's interpretive contention.
The court emphasized that the question of whether Customs definitions could be applied "basically" falls within the ratio of the cited decisions, and that the Commissioner had not adequately addressed this legal point.
Further, the court found a factual deficiency in the adjudication: there was no item-by-item examination to establish that particular products cleared to DTA were not "similar" to exported goods or to show why the notification benefit should be denied for each product. The court indicated that such granular factual findings were necessary for a complete order.

On these grounds — lack of justification for extended limitation, failure to apply the correct interpretive principle for "similar goods," and absence of item-wise factual findings — the court remanded the matter for reconsideration.

Holding and Implications

Core Ruling:

1. The invocation of the extended period is not sustainable in this case. The court held that because the appellant had filed returns mentioning the Notification and quantities cleared, there was no suppression or mis-declaration warranting extended limitation; any demand, if sustained, must be confined to one year from the date of the show cause notice.

2. The adjudication is remanded to the Original Adjudicating Authority for item-wise reconsideration of eligibility for DTA clearances and for a proper determination of which meaning of "similar goods" is to be adopted. The court directed that the adjudicating authority must examine each product cleared to the DTA, decide whether it is "similar" to exported goods (using the appropriate interpretive approach), and give findings explaining why notification benefits are or are not available for each item.

3. The Tribunal found the matter fit for waiver of pre-deposit.

Implications

Direct effect on parties: The adjudication that confirmed a duty demand and imposed penalty has been set aside to the extent that: (a) extended period cannot be invoked; and (b) the matter must be re-examined item-wise by the Original Adjudicating Authority. The appellant will be given an opportunity to present its case before final decision is taken.
On interpretation law: The Tribunal accepted the ratio of cited Supreme Court and Tribunal decisions that the Customs Act/Rules definition of "similar goods" should not be mechanically imported to determine entitlement under a notification issued under a different enactment; ordinary/dictionary meaning should be considered. The Tribunal required the adjudicating authority to adopt this approach when determining similarity.
No new sweeping precedent was declared by the Tribunal; instead, it applied existing authorities and remanded for proper factual and legal analysis at the adjudication stage.

Order pronounced by Members: (Ashok Jindal) (B.S.V. Murthy) — Member (Judicial) and Member (Technical).

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M/S. Meghmani Industries Limited (S) v. Commissioner, C. Excise Ahmedabad-I (S).

Per : Mr. B.S.V. Murthy, Appellant is 100% EOU engaged in the manufacture of agro chemicals and S.O. Dyes. In addition to exports the appellants also are clearing the some of their production in the Domestic Tariff Area, after obtaining permission of the Development Commissioner and availing the benefit of Notification No. 23/2003-CE dated 31.3.2003 as amended, which provides for concessional rate of duty, subject to fulfillment of conditions therein. For some period the appellants did not need permission from the Development Commissioner in view of the fact that they are a recognized star export house. Department took up investigations as to whether the clearances in Domestic Tariff Area, are in terms of notification availed by them and thereafter issued show cause notice and impugned order has been passed holding that in respect of certain agro chemicals and VAT dyes manufactured by them during the period from 2003-04 to 2008-09appellants are not eligible for the benefit of notification consequently demand for duty of Rs. 3,31,23,535/- has been confirmed against the appellants and penalty equal to the duty amount has also been imposed.

2. Learned advocate Shri P.M. Dave on behalf of the appellants submits that the Commissioner has exceeded his jurisdiction by determining the eligibility for clearances for Domestic Tariff Area,. It is his submission that once they had taken permission of Development Commissioner for clearances to Domestic Tariff Area, the Commissioner or Central Excise authorities cannot sit in judgment over the decision of the Development Commissioner and therefore, the demand is without jurisdiction and hence unsustainable. Further, he also submits that the demand has been made on the ground that the goods which are cleared in DTA should be similar to which are exported and only similar goods can be cleared and that too to the extent of 50% of the value of exports only. Department has taken stand that for the purpose of understanding similarity, reliance is to be placed on the definition of similar goods available in Customs Valuation Rules in the absence of any definition available in the Central Excise Rules or in the Notification. He submitted that for this purpose department has relied upon the Circular issued by the Board in 2008. In fact, the Circular issued by Board in 2008 was issued with a different purpose and took a liberal view for DTA clearances of similar goods permitted under exemption Notification. We find that the Circular observed that limited to 50% is required to be taken into consideration for the total quantity and in case of individual items, such percentage can come up to 75%. Once this Circular was issued department took investigation against the past clearances for five years to verify all the manufactured items exceeding cleared to DTA the limit of 50% in respect of similar goods (as per the definition given in the Customs Valuation Rules) item-wise and the adjudication order has been passed. It is his submission that prior to this clarification, there was no such condition at all and therefore all the clearances made were exactly as per the provisions of Notification. He further submitted that during the relevant period appellants were submitting quarterly returns as required under the law and copies of the invoices were also submitted. Commissioner in the impugned order has ignored this submissions on the ground that submission of invoices was not a statutory requirement and the returns did not cover the same issue etc. Further, he also submitted that the departments reliance on the definition of similar goods based on Customs Valuation Rules is against the law as laid down by the Hon'ble Supreme Court in the case of NAT Steel Equipment Pvt. Limited 1999 (34) ELT 8 (Supreme Court) and in Collector of Central Excise, Shilong vs.Wood Craft Products Limited 1995 (77) ELT 23 (Supreme Court). He also placed reliance in the case of CCE, Pune-1 vs. Telco 2000 (126) ELT 1102 (Tribunal) on the ground that the goods are different. It is his submission that all these decisions are very relevant and reliance of the department on definition of similar goods in Customs Valuation Rules for the purpose of determination of eligibility for clearance to DTA is totally wrong and is not in accordance with the law.

3. Learned DR on the other hand submitted that the departments case is based upon the statement of Shri Manohar Maheshwari, Dy. General Manager (Commercial), wherein he had indicated that VAT Dyes, Solvent Dyes and OBA Dyes are different from each other and each category of dyes, namely VAT dyes, OBA or Solvent dyes can be considered as similar. As regards agro-chemicals, Shri Manohar Maheshwari stated that each product is suitable for a particular type of crop, soil condition and weather conditions etc. and therefore, he could not clearly say that they are interchangeable and on this basis the department had proceeded to work out demand on DTA clearances and he submits that agro chemicals have to be treated as separate since they are not commercially replaceable, they can be said to be similar. As regards demand on VAT dyes, he submits that this is clearly in line with the statement of Shri Manohar Maheshwari. Therefore, he submits that demand has been made on the basis of statement of officer of the appellants and therefore it cannot be found fault with. Coming to the issue of limitation, he submits that merely because the appellants have chosen to submit copies of invoices which was not required statutorily, they cannot claim limitation. Further he also submits that as per the notification Assistant Commissioner was required to be satisfied and only when he was satisfied, the question of availability exemption would arise. Therefore he submits that extended period has been rightly invoked in this case.

4. We have considered the submissions made by both the sides. Applicability of extended period in our opinion is not sustainable in this case when the appellant has submitted returns which would show exemption notification availed by them, it cannot be said that there was any suppression or mis-declaration once the details of exemption Notification is given. Central Excise officer who is receiving the returns would be able to checkup whether the clearances by the appellants were in terms of the notification or not. Since the condition of the Notification are known to the officer as well as the appellants. When all available information is submitted, if the departmental officers choose not to take any action under the Notification, unless the department is able to show that in the return or in the declaration made by the appellants there were any omissions or commissions which would have prevented, the officer to find out the correct case, extended period can not be invoked. In this case no evidence has been brought out to show that return/documents/ declarations were incomplete or facts were suppressed or mis-diclared in the order. Further, it was also submitted that invoices need not have been given by the appellant and if given the departmental officer need not have to verify. In any case, we find that mention of the notification number in the return and giving quantum of the clearances would be sufficient for the purpose of department. Therefore, the extended period cannot be invoked and demand if upheld would be limited to one year from the date of show cause notice. Therefore, we consider it a fit case for waiver of pre-deposit. Further, we also find that two Supreme Court decisions and a Tribunal decision have been cited before Commissioner but there is no finding in respect of these decisions. Commissioner simply observed that the facts of each case are different from this case and therefore, the case law is not relevant. In this case what was required to be considered was whether the definition of similar goods available in Customs Valuation Rules can be applied to the facts of the case. Basically the issue involved appears to be covered by the decisions cited by the learned advocate. The facts were not relevant but ratio of the decision as regards words similar was to be considered. Therefore these decisions are applicable. Ratio of these decisions is that definition available in the Customs Act cannot be used in respect of Notification issued under another enactment. In such cases common parlance or dictionary meaning has to be applied. Therefore, we find this issue has not been dealt with properly by the Commissioner. We could have considered this issue here in the Tribunal but for the fact that there is no examination of the goods in question which have been cleared in the DTA in terms of definition of similarity. In our opinion, in such cases, there has to be examination in respect of each product to show that this product is not similar to the one exported and why benefit of notification is not available to this particular product. In the absence of clear finding in respect of each product, we consider the order would be incomplete. As already observed by us in respect of dyes, there seems to be clarity in view of the fact that demand shown under the heading VAT dyes would give an impression that department has accepted that VAT dyes, OBA and solvent dyes form distinct categories. There is no finding as regards agro-chemicals which are similar and if they are not similar why they are not similar. Commissioner has to consider all these facts and give finding on the issues. Therefore, we remand the matter to the Original Adjudicating Authority, who shall consider in respect of each item the eligibility in DTA and also which meaning of similar goods to be adopted. We have already held that extended period cannot be applied. Appellants are to be given proper opportunity to present their case before the final decision is taken. (Dictated and pronounced in the Court) (Ashok Jindal) (B.S.V. Murthy) Member (Judicial) Member (Technical) 7

M/S. Meghmani Industries Limited (S) v. Commissioner, C. Excise Ahmedabad-I (S).

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Department's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Implications

M/S. Meghmani Industries Limited (S) v. Commissioner, C. Excise Ahmedabad-I (S).

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