Custom, Excise & Service Tax Tribunal
Cce Mumbai Iii vs M/S. Precihole Machine Tools Pvt. Ltd on 11 May, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPEAL NO. E/3724/03 Mum
E/CO/233/04
(Arising out of Order-in-Appeal No. RJB/M-III/388/2003 dated 27.8.2003 passed by the Commissioner of Central Excise (Appeal) Mumbai)
For approval and signature:
Honble Shri Rakesh Kumar, Member (Technical)
and
Honble Shri Ashok Jindal, Member (Judicial)
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?
CCE Mumbai III
Appellant
Vs
M/s. Precihole Machine Tools Pvt. Ltd.
Respondent
Appearance Shri V.K. Singh, SDR for Appellant None for Respondents CORAM:
Shri Rakesh Kumar, Member (Technical) Shri Ashok Jindal, Member (Judicial) Date of Hearing : 11.05.2011 Date of Decision : 11.05.2011 ORDER NO.
Per Rakesh Kumar The respondents are the manufacturer of excisable goods falling under 7304.10 of CETA. During 2001-02 period they supplied Tubes, Pipes and hollow profiles of seamless iron to B.A.R.C claiming duty exemption under Notification No. 10/97 dated 01.03.97 (Serial No.1 of the table) which fully exempts from duty the scientific and technical instruments, apparatus, equipment (including computers), accessories and spare parts of these items, consumables, computer software, Compact Discs (CD-ROMs), prototypes etc. supplied to certain research institutions, subject to the conditions as prescribed in the Notification. The conditions prescribed are that the goods are only to be supplied to a public funded research institution under the administrative control of the Department of Space or Department of Atomic Energy or the Defence Research Development Organisation of the Govt. of India and a certificate to this effect is produced from an officer, not below the rank of Deputy Secretary to the Govt. of India of the concerned department in this regard at the time of clearance of the specific goods. Alternatively the importer institution must be registered with the Government of India in the Department of Scientific and Industrial Research and the manufacturer produces, at the time of clearance, a certificate from the Head of the institution in each case certifying that the said goods are required for research purpose only. In this case there is no dispute that the conditions prescribed in the Notification are satisfied as the required certificate from the Head of the Institution countersigned by the Deputy Secretary of the concerned Ministry has been produced. The only objection of the department was that the items supplied i.e tubes, pipes and hollow profiles of seamless iron do not fall in the category of scientific and technical instruments, apparatus, equipments or accessories/spare parts of such instruments, apparatus and equipment. On this basis a show-cause notice was issued for denying this exemption, which was adjudicated by the Asst. Commissioner, who dropped the show-cause notice proceedings. On appeal being filed by the department before the Commissioner (Appeals) against the Asst. Commissioners order, the Commissioner (Appeals) vide order dated 01.09.2003 dismissed the appeal. Against this order of the Commissioner (Appeals), the present appeal has been filed.
2. Though a notice for hearing had been issued to the respondent, at the time of hearing none appeared on their behalf a Cross Objection has been filed by them. In view of this, so far as the respondent are concerned, the matter has been decided ex-parte.
3. Heard Shri V.K. Singh, learned SDR who pleaded that for availment of exemption under Notification 10/97-CE fulfilling conditions prescribed in Column 4 of the table annexed to the Notification is not sufficient, as the goods supplied must fall in the category of items mentioned in the Column 3 of the table, that in this case, the items tubes, pipes and hollow profiles of seamless iron are raw material and the same cannot said to be accessories and spare parts of scientific and technical instruments, apparatus and equipments, that in view of this, the exemption under Notification 10/97-CE for the items mentioned in the certificate issued by the Head of the Institution would not be available, that in this regard he relies upon the judgement of the Tribunal in the case of Sudhir Engineering Co. vs. CCE Surat II 2004 (164) ELT 211 (Tri. Del) and CCE & Customs, Raigad vs. H & R Johnson India Ltd. 2008 (232) ELT 466 (Tri. Mumbai), that in the case of Sudhir Engineering (supra) the Tribunal has held that D.G. Sets and Control Panel required to provide necessary power back-up in case of electricity failure cannot be treated as accessory of any scientific instruments/apparatus equipment and hence, the same are not eligible for exemption under Notification No. 10/97-C.E, that in the case of H & R Johnson India Ltd. the Tribunal has upheld the denial of the exemption in respect of of unglazed vitrified ceramic tiles and that in view of this, the impugned order is not correct.
4. We have carefully considered the submissions of the learned DR, the submission of the respondents in the Cross Objection and have perused the records. In this case there is no dispute that the conditions prescribed in Column 4 of the table annexed to the notification are satisfied. The only dispute is as to whether the Tubes, Pipes & Hollow profiles of seamless Iron, supplied by the respondent to BARC could be treated as accessories and spare parts of Scientific & Technical instruments/apparatus or equipments. In our view when the institution has given a certificate counter-signed by the Deputy Secretary to the Government of India that these items are accessories or spare parts of scientific and technical instruments used for the research purpose only, it is difficult to accept the Departments contention that the certificate is not correct and that these items are not accessories or spare parts for scientific and technical instruments, apparatus or equipments. In the case of Sudhir Engineering CO. (supra) cited by the learned DR the disputed item was D.G. Sets and Control Panel used for power back up in case of electricity failure which obviously could not be called as accessories/spare parts. Similarly in the case of COMMR C.EX & CUS., Raigad vs. H & R Johnson India Ltd. (supra) cited by the learned DR the disputed item was unglazed vitrified ceramic tiles obviously could not be accessories or spare parts of scientific and technical instruments, apparatus or equipment. Ratio of these Judgements are not applicable to the facts of this case. In view of this there is no merit in the Revenues appeal. The same is dismissed. Cross Objection is also disposed of as above.
(Dictated in open Court) (Ashok Jindal) Member (Judicial) (Rakesh Kumar) Member (Technical) nsk 2