Custom, Excise & Service Tax Tribunal
M/S Sri Durga Mills vs Cce, Kanpur on 25 April, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III DATE OF HEARING : 25/04/2013. DATE OF DECISION : 25/04/2013. Excise Appeal No. 2144 of 2005 [Arising out of the Order-in-Appeal No. 607/CE/APPL/KNP/2004 dated 28/11/2004 passed by The Commissioner (Appeals), Customs & Central Excise, Kanpur.] For Approval and signature : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, 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 would be released under Rule 27 of : the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair : copy of the order? 4. Whether order is to be circulated to the : Department Authorities? M/s Sri Durga Mills Appellant Versus CCE, Kanpur Respondent
Appearance Shri A.P. Mathur, Advocate for the appellant.
Ms. S. Bector, Authorized Representative (DR) for the Respondent.
CORAM : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) Final Order No. 56306/2013 Dated : 25/04/2013 Per. Archana Wadhwa :-
After hearing both the sides, we find that the appellants are engaged in the manufacture of Copper and Copper Alloy Circles/Sheets falling under Chapter 74 on job work basis for the manufacturers of utensils or handicrafts. As per Notification No. 4/97-CE dated 1/3/97 and subsequent Notification No. 5/98-CE dated 2/6/98, if the trimmed or untrimmed Sheets or Circles of Copper are intended for use in the manufacture of handicrafts or utensils, they attract concessional rate of duty, subject to satisfaction of Condition No. 23. The appellants, during the relevant period, availed the benefit of said notification. There is no dispute that condition 23 attached to the said Sl. No. 176 of the Notification is fully satisfied by the appellant.
2. The Revenue, however, entertained a view that the circles and sheets manufactured by the appellant might not have been used by the consignees for the manufacture of utensils or handicrafts and started investigations into the matter. They accordingly made inquiries from the customers of the appellant. In as much as customers refused to have any transactions with the appellant and having maintained any records for the manufacture of utensils etc., Revenue was of the view that the benefit of notification is not available to the appellant. Accordingly, proceedings were initiated resulting into confirmation of demand by the original Adjudicating Authority which stands upheld by the Commissioner (Appeals). Hence, the present appeal.
3. We have considered the submissions made by both the sides and have gone through the impugned orders of authorities below. The notification, in question, stands seen by us. Sl. No. 176 of the notification is as under :-
trimmed or untrimmed sheets or circles of copper, intended for use in the manufacture of handicrafts or utensils.
4. As is seen from above, the benefit of concessional rate stands given in terms of the said Sl. No. to the sheets and circles of copper which are intended for use in the manufacture of handicrafts or utensils. Condition No. 23 relates to availment of Cenvat credit etc., and there is no further condition attached to the said notification laying down that it must be proved beyond doubt, that such circles stand used in the manufacture of handicrafts or utensils. On going through the order of the original Adjudicating Authority, we find that though the appellants customers had initially refused having dealt with the appellant, but subsequently they produced certificates on record evidencing that the appellant had worked for them on job work basis and they have received sheets and circles which further stand used in the manufacture of utensils or handicrafts. The original Adjudicating Authority has not accepted the said certificates on the ground that the same are undated and are not supported by any account or co-relation or corroboration with subtracts from books of accounts. As such, that cannot be considered as evidence of end use of the received sheets/circles. As such, the original Adjudicating Authority denied the benefit of the notification on the ground that end use certificates produced by the appellants customers cannot proof the use of sheets/circles for the manufacture of utensils or handicrafts.
5. We find no merits in the above reasoning of the original Adjudicating Authority, as upheld by Commissioner (Appeals). First of all, there is no such condition of producing end use certificates in the notification, which grants concessional rate of duty on the simplicitor ground that such circles are intended for use in the manufacture of utensils and handicrafts. As such, as long as there is an intention to use the sheets and circles in the manufacture of utensils and handicrafts, the benefit of notification is required to be extended, without actually verifying as to whether such sheets/circle stand actually used in the manufacture of utensils/handicrafts. Revenue cannot legislate and introduce a new condition in the notification on its own and call for the end use certificates.
6. In any case and in any view of the matter, we find that such certificate stand produced on record by the appellants customers during the adjudication proceedings, but do not stand accepted on the ground that they are undated and not supported by any account maintained by the customers. The revenue insistence on such production of account of the customers is neither in terms of the notification nor any other condition of the said notification requires them to do so. If the Government intended to require the production of end uses certificates, such condition would have been a part of the notification as the same is in number of so many other notifications. Such insistence and in any case rejection of certificates produced by the customers on flimsy ground reflects upon the intention of the lower authorities to confirm the demand, which cannot be appreciated.
7. For the reasons recorded above, we set aside the impugned order and allow the appeal with consequential relief to the appellant.
(Dictated and pronounced in open court) (Archana Wadhwa) Member (Judicial) (Rakesh Kumar) Member (Technical) PK ??
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