Custom, Excise & Service Tax Tribunal
Global Wool Alliance Pvt. Ltd vs Commissioner Of Central Excise, ... on 12 June, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPLICATION No. E/MA/Ors/1556/12-Mum APPEAL Nos. E/78 to 81, 93 & 236/10-Mum (Arising out of Order-in-Original No. 37/BR-33/Th-I/2009 dated 20.10.2009 passed by Commissioner of Central Excise, Thane-I) For approval and signature: Honble Mr. S.S. Kang, Vice President Honble Mr. P.K. Jain, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Global Wool Alliance Pvt. Ltd. Appellants Prem Kumar Mehra Vivek Mehta S.S. Saudagar C.R. Surendran G.K. Nawalgaria Vs. Commissioner of Central Excise, Thane-I Respondent Appearance: Shri Prakash Shah, Advocate, for appellant Shri B.S. Meena, Additional Commissioner (AR), for respondent CORAM: Honble Mr. S.S. Kang, Vice President Honble Mr. P.K. Jain, Member (Technical) Date of Hearing: 12.6.2013 Date of Decision: 12.6.2013 ORDER NO Per: S.S. Kang Heard both sides.
2. The appellants filed a miscellaneous application for producing additional evidence to show that the appellants have no facility including plant and equipment for producing goods of Chapter Heading 5503 of the Central Excise Tariff.
3. The appellants filed these appeals against the adjudication order passed by the Commissioner of Central Excise. The adjudicating authority confirmed the demand of Rs.2,12,17,000/-, interest and penalties, by denying the benefit of Notification No.30/2004-CE dated 9.7.2004 at serial No.10, for the period September 2004 to August 2008.
4. The contention of the appellants is that the appellants are fulfilling the conditions of the Notification as provided at serial No.10. Earlier the appellants unit was a 100% EOU and the same was converted into DTA in December 2003 and at the time of debonding, the appellants filed detailed list of their machineries and the appellants were filing necessary ER-7 returns providing the details of the machinery with technical specifications.
5. The contention of the appellants is that the appellants are fulfilling the conditions of the Notification 30/2004-CE hence the benefit of the Notification was wrongly denied on the ground that the appellants are not procuring staple fibre from outside. The Revenue denied the benefit of the Notification on the ground that the appellants are procuring tow from outside, which was subsequently converted into tops by adopting the tow-to-top converter. The benefit of the Notification was also denied on the ground that the appellants are also having facility including plant and equipment for producing goods of Chapter Heading 5503 of the Tariff.
6. The contention of the appellants is that the issue whether the manufacturer who is procuring tow and converting into tops by adopting the process of tow-to-top is now settled by the decision of the Honble Bombay High Court in the case of Raymond Ltd. vs. UOI reported in 2009 (240) ELT 180 (Bom.). In the case of Raymond Ltd. the assessee was procuring tow falling under Chapter Heading 5501 of the Tariff and converting into tops by the process known as tow-to-top process. The Honble Bombay High Court held that Raymond Ltd. is entitled for the benefit of Notification No.30/2004-CE.
7. In respect of the other contention that the appellants are having facility to produce goods of Chapter Heading 5503 of the Tariff, the contention is that as per the ER-7 returns whereby the details of machine and machinery are submitted to the Revenue, there is no plant and equipment for producing the goods of Heading 5503 of the Tariff. The appellants produced evidence by way of miscellaneous application to show evidence in support of this claim. In view of this, the contention is that the impugned order is not sustainable.
8. The Revenue relied upon the statements of Shri Anil Shah, General Manager, and Shri S.S. Saudagar, Excise Manager. The contention is that in their statements they specifically admitted that they are procuring tow and not staple fibre which is converted into tops. It is also admitted in their statements that the unit is having facility to manufacture the goods of Chapter Heading 5503 of the Tariff. The learned AR appearing on behalf of the Revenue relied upon the findings of the adjudicating authority to submit that in the process of converting tow to top, staple fibre comes into existence hence the appellants are not entitled for the benefit of the Notification.
9. In the present proceedings, the benefit of Notification No.30/2004-CE dated 9.7.2004 at serial No.10 is being denied. For ready reference, the relevant portion of the Notification is reproduced below:-
Notification No.30/2004-CE dated 9.7.2004 Textiles and Textile Articles Effective rate of duty to specified goods of Chapters 50 to 63.
In exercise of the powers conferred by sub-section (1) of Section 5A of the Central Excise Act, 1944 (1 of 1944) read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.7/2003-Centra Excise dated the 1st March 2003, published in the Gazette of India vide number GSR 137(E), dated 1st March 2003, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the excisable goods of the description specified in column (3) of the Table below and falling within the Chapter, heading No. or sub-heading No. of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the Central Excise Tariff Act), specified in the corresponding entry in column (2) of the said Table, from whole of the duty of excise leviable thereon under the said Central Excise Act:
Provided that nothing contained in this notification shall apply to the goods in respect of which credit of duty on inputs or capital goods has been taken under the provisions of the Cenvat Credit Rules, 2002, -
S.No Chapter or heading No. or sub-heading No. Description of goods
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55.06, 55.07 Staple fibres procured from outside and subjected to carding, combing or any other process required for spinning, by a manufacturer who does not have the facilities in his factory (including plant and equipment) for producing goods of heading Nos. 55.01, 55.02, 55.03 and 55.04.
10. The contention of the appellants is that the issue that a manufacturer who is procuring tow from outside and converting into tops is covered by the decision of the Honble Bombay High Court in the case of Raymond Ltd. (supra). The appellants also filed a miscellaneous application in support of their claim that the appellants have no facility in the factory (including plant and equipment) for producing goods of Chapter Heading 5503 of the Central Excise Tariff. The appellants relied upon the returns filed to the Revenue whereby details of machine and machineries were disclosed and the contention of the appellants is that there are no machine and machineries in the factory for producing the goods of Chapter Heading 5503 of the Tariff. This factual aspect requires verification by the adjudicating authority. In view of this, the matter requires to be reconsidered by the adjudicating authority afresh. The impugned order is set aside and the matter is remanded to the adjudicating authority for de novo adjudication. The adjudicating authority will decide after affording an opportunity of hearing to the appellant. The appeals are disposed of in above terms. The miscellaneous application is allowed.
(Dictated in Court) (P.K. Jain) Member (Technical) (S.S. Kang) Vice President tvu 1 7