Custom, Excise & Service Tax Tribunal
Recon Oil Industries Pvt. Ltd vs Commissioner Of Central Excise, ... on 6 January, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Application(s) Involved: E/Stay/28789/2013, E/Stay/28795/2013 in E/28133/2013-DB, E/28140/2013-DB Appeal(s) Involved: E/28133/2013-DB, E/28140/2013-DB [Arising out of Order-In-Appeal Nos. 8 & 9/2013 dated 17/06/2013 passed by the Commissioner of Customs, Central Excise and Service Tax, Hyderabad-II ( Appeals) ] For approval and signature: HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER 1 Whether Press Reporters 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 the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 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 Recon Oil Industries Pvt. Ltd. 18-2-45/2/1, Modern Goyal Oil Mills, Chandrayangutta, Hyderabad 500 005 Andhra Pradesh Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax Hyderabad-II L.B Stadium Road, Basheerbagh, Hyderabad - 500 004 Andhra Pradesh Respondent(s)
Appearance:
Mr. Harish R., Advocate Lakshmi Kumaran & Sridharan World Trade Centre No. 404-406, 4th Floor, South Wing Brigade Gateway Campus No.26/1, Dr. Rajkumar Road, Bangalore - 560 055 Karnataka For the Appellant Mr. Mohd. Yusuf, AR For the Respondent Date of Hearing: 06/01/2015 Date of Decision: 06/01/2015 CORAM:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER Final Order Nos. 20044-20045 / 2015 Per : ARCHANA WADHWA After granting Stay Order, we proceed to decide the appeal itself inasmuch as issue stands decided by various decisions of the Tribunal as affirmed by Honble Supreme Court as also by the Honble Madras High Court.
2. The dispute is about correct classification of the coconut oil packed in less than 200 ml containers. Whereas the appellants have claimed the classification of the same as edible oil, falling under Chapter 15 of the Central Excise Tariff Act, the Revenue has classified the same as hair oil, falling under Chapter 33 of the Tariff.
3. After hearing both the sides and on going through the impugned orders, we find that the original adjudicating authority in para 16 of his order, admitted that the classification of coconut oil has been the subject matter of dispute in a number of cases and in all those cases the classification was held under Chapter Heading 1503. Reference stands made by the adjudicating authority to the Tribunal decisions in the case of Kothari Products Ltd. Vs. CCE, Kanpur reported in [2002 (139) ELT 633 (Tri.-Del.)], Amardeo Plastics Industries Vs. CCE, Belapur reported in [2007 (210) ELT 360] as also to the decision in Ashwariya Industries Vs. CCE reported in [2009 (235) ELT 544 (Tri.-Chennai)]. However he does not follow the said decision of the Tribunal on the ground that the period of demand in the present case is subsequent to 28.02.2005, when there was amendment in Chapter Notes of Chapter 33 laying down that goods classifiable under some of the Chapters of 30, 32, 33, 35 and 38, by reason of being put up for retail sales are to be classified in those headings and in no other heading of this schedule. After observing so he relied upon the Boards Circular dated 03.06.2009, clarifying that the coconut oil packed in less than 200 mls of packs would be classifiable under Chapter 33.
4. We find that apart from the fact that the classification of coconut oil stands held by the Tribunal as under Chapter 15 in the decisions referred supra, wherein the applicability of the said Chapter Note was also considered. Admittedly the said Chapter Note relates to the goods falling under Chapters enumerated therein and Chapter 15 is not one of the specified Chapter. As such we find that the amendment to said Chapter Note of Chapter 33 has no applicability to the dispute in question.
5. As already observed the dispute is about the classification between Chapter 15 and Chapter 33. As admittedly the Tribunal decisions have held the coconut oil as falling under Chapter 15, we find no merit in the orders of the authorities below to hold the classification of the same as falling under Chapter 33. Apart from that the reliance placed by the lower authorities on Circular dated 03.06.2009 is also not proper. The said Circular was considered by the Honble Madras High Court in the case of VVD & Sons Pvt. Ltd. Vs. CBEC [2014 (310) ELT 718 (Mad.)] and was held to be bad in law by considering the same as an attempt to interfere in the judicial process. As such the reliance by the lower authorities on the said Circular cannot be appreciated.
6. Apart from above we also find that the said dispute has been the subject matter of the other decision of the Tribunal as also of High Court. The Tribunal in the case of Madhan Agro Industries (India) Pvt. Ltd. Vs. CCE, Salem [2008 (159) ECR 0044 (Tri.-Chennai)] as also in the case of Capital Technologies Ltd. & others Vs. CCE & ST, Tirupati [2011-TIOL-775-CESTAT-BANG] has held the coconut oil packed in less than 200 ml packs to be edible oil falling under Chapter 15. Further the Tribunal decision in the case of Capital Technologies stands affirmed by the Honble Supreme Court, when the appeal filed by the Revenue was dismissed vide their order dated 23.01.2012. We also note that the said dispute was the subject matter of the decision of the Honble High Court of Kerala in the case of Marico Ltd. Vs. Union of India vide their order dated 10.11.2009, wherein it has been held that in the absence of any stay or reversal of the Tribunals decisions laying down that coconut oil packed and sold in packets of capacity up to 200 ml are not liable to excise duty, Revenue cannot confirm duty against the petitioner.
7. As discussed above, the issue stands decided in favour of the assessee by catena of decisions. By following the same, we set aside the impugned order and allow the appeals with consequential relief to the appellant. Stay petitions also get disposed of.
(Order pronounced and dictated in open court) (B.S.V. MURTHY) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER iss