Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise-Rajkot vs M/S Reliance Industries Ltd on 9 April, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad *****
Appeal No. : E/13739/2014 [ Arising out of OIA-RJT-EXCUS-000-APP-211-14-15 dtd 9.10.2014 Passed by Commissioner of Central Excise-RAJKOT ] Commissioner of Central Excise-RAJKOT - Appellant(s) Vs M/s Reliance Industries Ltd - Respondent (s) Represented by :
For Assessee : Shri K Shivkumar, Authorised Representative For Revenue : Shri J C Patel, Advocate Ms Shilpa Balani, Advocate For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. H.K. Thakur, Honble Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes CORAM :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. H.K. Thakur, Honble Member (Technical) Date of Hearing / Decision : 9/4/2015 ORDER No. A/10758 / 2015 dtd 9/4/2015 Per : Mr.P.K. Das, After hearing both the sides and on perusal of records, we find that the issue involved in this case is whether the respondent a100% EOU at the material time, are required to pay NCCD @ Rs 50/- per MT under Section 134 of Finance Act 2003, at the time of importation of the Crude Oil on the ground that the said NCCD has not been exempted by Notification No. 52/2003 dtd 31.3.2003.
2. By the impugned order, the Commissioner (Appeal) set aside the adjudication order following the decision of the Larger Bench of the Tribunal in the case of Paras Fab International Vs CC Ex., Kandla 2010(256)ELT.556 (Tri.LB)
3. The Learned Advocate submits that the same issue in their own case the Tribunal in the case of CC, Jamnagar Vs. Reliance Industries Ltd 2011(268)ELT.380 (Tri.Ahd) rejected the appeal filed by the Revenue. The Revenue in the grounds of appeal stated that the decision of the Larger Bench was challenged, which is still pending. For the purpose of proper appreciation of the case, the relevant portion of the decision in the case of Reliance Industries Ltd (supra) is reproduced below :
We also find favour with the? submissions raised by the respondents that in any case, in any way of the matter, no duty was required to be paid by them in view of the law declared by the Larger Bench in the case of Paras Fab International. It stands held in the Larger Bench decision that inasmuch as the entire premises of 100% EOU have to be treated as a warehouse, the imported goods warehoused in the said premises and used for the purpose of manufacturing in-bond as authorized under Section 65 of the Customs Act 1962, cannot be treated to have been removed for home consumption. If that be so, the goods are not cleared from 100% EOU and hence there cannot be any demand of duty on the same. The Tribunal accordingly, affirmed the earlier judgment of the Tribunal in the case of STI India Limited reported as 2008 (222) E.L.T. 112 (Tri.). While rendering the said Larger Bench decision, the Tribunal took into consideration the fact that the entire premises of an 100% EOU is licensed as private bonded warehouse under Section 58 of the Customs Act, 1962. The imported goods are required to be imported directly to such premises and a manufacturing is required to be done within the bonded premises. By taking note of the provisions of Customs Act as also the Customs Manual, it was observed that neither speaks of any requirement to pay any duty on the warehoused goods which are used for manufacture in bond nor it require filing of any ex-bond bill of entry at that stage. Sections 68 of the Customs Act, dealing with clearance of the warehoused goods for home consumption require filing of ex-bond bill of entry for payment of import duty and other charges. Section 65, which deals with manufacturing in bond does not required any filing of ex-bond bill of entry or payment of duty before taking warehoused goods for manufacture inside the bonded premises. There is also no provision treating the said goods as deemed to have been removed for the purpose of Customs Act. As such, the Larger Bench observed that if such use has to be treated as removal for home consumption and duty is required to be paid on such use, there will not be any incentive for an assessee to undertake manufacturing in-bond and the provisions made the provisions made in this regard would not be of any use. The policy objective behind enactment of such statutory provisions and designing of EOU scheme to make available duty free material for manufacturing export goods would be entirely defeated However, we? find that all arguments raised by Shri Mondal stands considered by the Larger Bench decision of the Tribunal in the case of Paras Fab International. Fine distinction drawn by Shri Mondal between private bonded house and 100% EOU are of no help to the Revenue, inasmuch as the issue on the said dispute stands answered by the Larger Bench in the case of Paras Fab International which even Shri Mondal has also not denied. Further, the fact of payment of duty at the time of filing bill of entry for warehouse Under Protest will also not change the legal position that 100% EOU is required to pay duty only at the time of clearances of warehoused goods for home consumption. To arrive at the decision other than the one declared by the Larger Bench, would amount to sitting in the appeal over the Larger Bench judgment, which is not permissible under the law. As a division bench we feel bound by the law declared by the Larger Bench. By following the law declared by the Larger Bench decision in the case of Paras Fab International that 100% EOU is not required to discharge any duty liability in respect of the imported goods warehoused in their premises and used for the purpose of manufacturing in-bond, we hold that respondents were not required to pay any NCCD, Education Cess and SHE Cess. As such, on this point also the appeals filed by the Revenue are to be rejected. We order accordingly. Cross objections filed by the respondents also get disposed off.
4. We find that the present case is squarely covered by the decision of the Tribunal in the respondents own case. In view of that, we do find any reason to interfere the order of the Commissioner (Appeal). Accordingly, the appeal filed by the Revenue is rejected.
(Dictated and pronounced in the Court)
(H.K. Thakur) (P.K. Das)
Member (Technical) Member (Judicial)
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