Custom, Excise & Service Tax Tribunal
Electronics Corporation Of India Ltd vs C.C.E.,C.C-Hyderabad-Iii on 23 October, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Application(s) Involved: E/MISC./28449/2013 in E/3397/2012-DB E/Stay/2471/2012 in E/3397/2012-DB Appeal(s) Involved: E/3397/2012-DB [Arising out of Order in Appeal No.14/2012-Hyd.-III-Adjn. (Commr.) dt. 08/09/2012 passed by the Commissioner of Customs, Central Excise & Service Tax, Hyderabad-III Commissionerate, Hyderabad.] ELECTRONICS CORPORATION OF INDIA LTD. Appellant Versus C.C.E.,C.C-HYDERABAD-III Respondent
Appearance:
MR. V.J SANKARAM, ADVOCATE For the Appellant MR.A.K. NIGAM, ADDL. COMMISSIONER (AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY , TECHNICAL MEMBER HON'BLE SHRI ANIL CHOUDHARY , JUDICIAL MEMBER Date of Hearing: 23/10/2013 Date of Decision: 23/10/2013 Final Order No. 26828 / 2013 Order Per : B.S.V.MURTHY Both sides agree that the matter is required to be remanded for reconsideration of the issue. The issue involved is whether the appellants clearances involving duty amount of Rs.1,21,33,600/- under the claim of benefit of Notifications No.4/2006-CE dated 1.3.2006, No.10/97-CE dated 1.3.1997 and No.64/95-CE dated 16.3.1995 have been correctly made or not.
2. After hearing both the sides and going through the records, we find that the Commissioner in the order-in-original has recorded a clear finding in paragraph 20 that out of the clearances made by the appellant, in respect of a portion of clearances the certificate as required under relevant notifications were not available. This is the basis for confirmation of demand. Further, there was also an allegation in the show-cause notice that the appellants were mentioning different notifications without any relevance whatsoever to the actual goods being cleared and this was one of the grounds taken in the show-cause notice also. Moreover, we find on going through the annexures submitted that while the appellants have submitted the copies of the certificates issued by BEL or the receiver and the invoices, the statement given by them in the annexures only give the following details, invoice numbers, the date of clearance, customers name, customers order reference, assessable value, exemption notification and duty exemption reference. From the statements, it can be seen that while all the details are available, whatever required i.e., the total quantity/value indicated in the exemption certificate and actual quantity/value cleared in terms of the exemption notification and the invoices numbers thereof are missing. In the result, it will require a lot of effort and time to find out whether the total quantity mentioned in the certificate and the total clearances tally or not based on the documents submitted by the assessee. Commissioner could have undertaken verification but Commissioner has already recorded a finding that the quantity in respect of duty demanded is not covered by the exemption certificate. It is the submission of the learned counsel that the entire quantity/value cleared by them is covered by the exemption certificates and clearances have been made correctly. Further they have also produced a Chartered Accountants certificate which has not been produced before the original authority. This Chartered Accountants certificate is dated 3.7.2013 and it categorically certifies that all the clearances made by the appellants are covered by the exemption certificates. Under these circumstances, as submitted by both sides, matter has to be remanded for fresh consideration of the issues. Accordingly the impugned order is set aside and the matter is remanded to the original adjudicating authority without expressing any opinion on the merits of the case. Appellants shall be given reasonable opportunity to present their case before the matter is adjudicated.
3. We also find that a miscellaneous application for including additional evidence has also been filed and the additional evidence so proposed for inclusion is nothing but the Chartered Accountants certificate which has been discussed by us in the order. In view of the fact that the additional evidence submitted by the appellant has been considered, the miscellaneous application is also disposed of.
(Order dictated and pronounced in open court) ANIL CHOUDHARY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER rv