Custom, Excise & Service Tax Tribunal
Nakoda Textile Industries Ltd vs C.C.E. & S.T.-Surat-Ii on 12 June, 2015
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad ****
Appeal No : E/1071-1072/2007 (Arising out of OIA-KLG/213-214/SRT-II/2007 Dated 28/06/2007, OIA-KLG/213-214/SRT-II/2007 Dated 28/06/2007 passed by Commissioner (Appeals) of Central Excise, CUSTOMS (Adjudication)-SURAT-II, Commissioners of Central Exise, Customs and Service Tax-SURAT-II)
1. Nakoda Textile Industries Ltd
2. Satish Sidhpuria : Appellant (s) Vs C.C.E. & S.T.-Surat-ii : Respondent (s) Represented by:
For Appellant (s) : None For Respondent (s):Shri Alok Srivastava, Authorised Representative For approval and signature:
Mr. P.K. Das, Honble Member (Judicial) Mr. P.M, Saleem 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? No
2. Whether it should be released under Rule 27 of the 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, HONBLE MEMBER (JUDICIAL)
Mr. P.M, SALEEM, HONBLE MEMBER (TECHNICAL)
Date of Hearing/Decision:12.06.2015
Order No. 10843-10844/2015 Dated 12.06.2015
Per: P.M. SALEEM
These two appeals are filed against a common order in appeal issued by Commissioner (Appeals) on the same issue. Therefore, these appeals are taken up together and disposed of by this common order. Issue involved here is whether the duty of NCCD is leviable on removal of POY for captive Consumption, and on sale to other 100% EOUs as deemed exports, during 2003-2004.
2. None appears on behalf of the appellants.
3. Heard the Learned Authorised Representative who reiterated the findings of the Commissioner (Appeals) and argued vehemently that NCCD is not exempted specifically, and does not constitute a duty of Excise and therefore the same is leviable even when Central Excise Duty is wholly exempted.
4. We find that the issue is no more res-integra and this Honble Tribunal has held in the case of Filatex India Ltd. vs Commissioner of Central Excise & Service Tax, Vapi 2014 (302) E.L.T. 446 (Tri. Ahmd.) that NCCD is not leviable, where the goods are cleared for export or for captive Consumption. The decision of the Honble Tribunal is reproduced below:-
4.?Heard both sides and perused the case records. On the issue of export of goods and chargeability of NCCD, C.B.E. & C. vide Circular No. 641/32/2002-CX, dated 26-6-2002 has issued following clarification :-
I am directed to refer to Section 129 of the Finance Act, 2001 relating to imposition of National Calamity Contingent Duty (NCCD) and Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001 relating to export of goods without payment of duty under bond and to say that reportedly some of the field formations are issuing demands for collection of National Calamity Contingent Duty (NCCD) on goods exported under bond. The duty demands are issued on the ground that the said notification does not apply to NCCD.
2.?Board has examined the matter. Though NCCD is levied under Finance Act, 2001, it is a duty of excise. Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001 issued under Rule 19 of Central Excise Rules, 2001 read with Central Excise Rules, 2002 allows goods to be exported without payment of duty. Further, it is the policy to grant relief from element of domestic taxes on goods, which are exported. Accordingly, it is clarified that no NCCD leviable under Section 129 of Finance Act, 2001 to be paid on the goods exported under bond. No doubt if export does not eventually take place the goods would be subject to all duties of excise including NCCD as applicable.
The above Circular was followed by C.B.E. & C. Circulars 60/1/2006-CX, dated 13-1-2006 and 232/16/2004-CX, dated 30-1-2006, issued under Section 37B of the Central Excise Act, 1944.
5.?With respect to chargeability of NCCD on captive consumption of goods, it has been held in the case of M/s. Modern Petrofils v. CCE Vadodara (supra) by this Bench that NCCD is not leviable. In view of the latest view point held by this Bench NCCD is not payable by the appellant. Secondly, C.B.E. & C. circulars issued on an issue are binding on the departmental officers and cannot be challenged in appeal. In view of the above observations appeals filed by the appellants are allowed.
5. We find that the issue is identical in the present appeal and the above decision of this Honble Bench is squarely applicable. In view of the same, the impugned orders in appeal are set-aside, and both appeals are allowed.
(Operative portion of the order pronounced in open Court)
(P.K. Das) (P.M. Saleem)
Member (Judicial) Member (Technical)
govind
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