Custom, Excise & Service Tax Tribunal
Nitco Terrazzo (P) Ltd vs Commissioner Of Central Excise ... on 2 February, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH
BANGALORE
Appeal(s) Involved:
E/137/2010-DB, E/68/2007-DB, E/69/2007-DB E/70/2007
[Arising out of Order-in-Appeal No. 134-2009 CE dated 09/10/2009 passed by the Commissioner of Central Excise (Appeals), Bangalore]
[Arising out of Order-in-Appeal No. 106-2006 dated 27/10/2006 passed by the Commissioner of Central Excise (Appeals), Bangalore]
[Arising out of Order-in-Appeal No. 107-2006 dated 27/10/2006 passed by the Commissioner of Central Excise (Appeals), Bangalore ]
[Arising out of Order-in-Appeal No. 108-2006 dated 27/10/2006 passed by the Commissioner of Central Excise (Appeals), Bangalore ]
For approval and signature:
HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER
HON'BLE SHRI ASHOK K. ARYA, 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?
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
NITCO TERRAZZO (P) LTD
79/A, KIADB INDUSTRIAL AREA, BANGALORE (KA)
Appellant(s)
Commissioner of Central Excise ,Customs and Service Tax BANGALORE-I
POST BOX NO 5400...CR BUILDINGS,
BANGALORE, - 560001
Appellant(s)
Versus
Commissioner of Central Excise ,Customs and Service Tax BANGALORE-I
POST BOX NO 5400...CR BUILDINGS,
BANGALORE, - 560001
KARNATAKA
Respondent(s)
NITCO TERRAZZO PVT LTD #79/A, ROAD NO.4, KIADB INDUSTRIAL AREA, JIGANI, BANGALORE Respondent(s) Appearance:
Mr. H.Y. RAJA, Adv #185, 'BRAHM', 'G' CROSS, 3RD BLOCK EXTENSION, NAGARBHAVI 2ND STAGE, BANGALORE - 72 KARNATAKA For the Appellant Mr MOHAMMAD YUSUF A.R. For the Respondent Date of Hearing: 02/02/2016 Date of Decision: 02/02/2016 CORAM:
HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER Final Order No. 20179-20182 / 2016 Per : ARCHANA WADHWA The assessee is engaged in the manufacture of mosaic tiles, cement pavers and jointing powder classifiable under Chapter heading 6807 of CETA 1985. During the relevant period, for the purposes of the present appeal, they were availing the benefit of small scale exemption Notification No. 8/2003 dated 01.03.2003 as amended. Appellants were using the brand name of NITCO on their tiles. Revenue entertained a view that the benefit of SSI exemption is not available to them. Accordingly proceedings were initiated which were first dropped by the original adjudicating authority on the ground that the appellants factory is situated in a rural area and hence not hit by the Notification in question. The said order of the Assistant Commissioner was appealed against by the Revenue before Commissioner(Appeals), who reversed the same. The appellant came before the Tribunal and the matter was remanded to Commissioner (Appeals). In his denovo order Commissioner (Appeals) dropped the demands and held that the appellants are entitled to the benefit of Small Scale Exemption Notification . This order of Commissioner (Appeals) stands accepted by the Revenue and was not appealed against and hence the said legal issue stands decided in favour of the assessee.
2. The second issue involved is that appellants are availing the benefit of Notification No. 10/2003 which provides concessional rate of duty in respect of mosaic tiles. As such after crossing the small scale exemption limit, they were clearing the tiles at concessional rate. The Revenue objected to such availment of exemption on the ground that cement pavers cannot be considered to be mosaic tiles covered by the Notification in question and accordingly, demand stands confirmed along with imposition of penalty.
It is seen that the original adjudicating authority in his order passed in the year 2004 held in favour of the assessee. However, the said order of the original adjudicating authority was reversed by Commissioner(Appeals) in the year 2006 only. As such in terms of the order-in-original passed by the Assistant Commissioner, the appellant continued to avail the exemption between the date of the order i.e. 2004 till the order was reversed in 2006. The appellants accepted that order of Commissioner (Appeals) and paid the duties accordingly. The present appeal relates to the period falling between the years 2004 & 2006. The duty liabilities stand accepted by the assessee but the prayer is to set aside the penalties on the ground that during the said period, the appellant was clearing the said mosaic tiles at concessional rate of duty in terms of the order passed by the original adjudicating authority. As such there cannot be any malafide on his part so as to attract the penal provisions.
3. Learned AR appearing for the Revenue has not been able to advance any justifiable reasons for imposition of penalty. Admittedly there was an order by original adjudicating authority expressing view in favour of the assessee and such views were being followed by the assessee. When the order was reversed by Commissioner (Appeals), they paid the duty and also started paying duty for the future clearances. In such a scenario, imposition of penalty on them cannot be justified. We accordingly confirm the demand as not contested and set aside the penalty of Rs. 50,000/- imposed upon the appellant.
3. The appeal is disposed of in above manner.
(Order pronounced in open court) ASHOK K. ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER pnr 2