Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Nagpur vs M/S. Rallis India Ltd on 30 November, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. E/245 & 1345/06 (Arising out of Order-in-Appeal No. SVS/35/NGP-A/2006 dt. 30.1.2006 passed by the Commissioner (Appeals) Customs & Central, Excise, Nagpur ) For approval and signature: Honble Shri Ramesh Nair, Member (Judicial) Honble Shri Raju, Member (Technical) =======================================================
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 : No
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?
=======================================================
Commissioner of Central Excise, Nagpur
:
Appellant
VS
M/s. Rallis India Ltd.
:
Respondent
Appearance
Shri V.K. Shastri, Assistant Commissioner (A.R.) for Appellant
Shri Rajesh Ostwal, Advocate for respondent
CORAM:
Honble Shri Ramesh Nair, Member (Judicial)
Honble Shri Raju, Member (Technical)
Date of hearing : 30/11/2016
Date of pronouncement : 05/01/2017
ORDER NO.
Per : Ramesh Nair
This appeal filed by the Revenue against the order passed by the Commissioner (Appeals).
2. The fact of the case is that the appellant imported Solubor which is Sodium Borate classified under chapter heading 3105 of the Central Excise Tariff Act, 1985. These goods after import repacked and sold as fertilizer. The original authority confirmed the demand on the ground that the Solubor is correctly classifiable under chapter 2840. As per the Chapter 28 repacking is amount to manufacture and therefore the respondent was supposed to pay duty on the repacking and clearance of the imported goods. The Ld. Commissioner (Appeals) dropped the demand on the ground that at the time of import in bill of entry Solubor was classified under chapter heading 3105. Therefore the assessment done by the Customs cannot be reviewed by the Central Excise officer. Accordingly, the repacking of the goods falling under Chapter Heading 3105 is not amount to manufacture, hence not dutiable.
2. Shri V.K.Shastri Ld. Assistant Commissioner (AR) appearing on behalf of the revenue submits that the assessment of Customs and Central Excise are different. Therefore only because the goods were classified under Chapter Heading 3105 under the Customs cannot be applied in the case of provisions for manufacture of goods under Central Excise Act. The product is correctly classifiable under Chapter heading 2840 and repacking of the said product amounts to manufacture in terms of Chapter note provided under chapter 28 of the Central Excise Tariff Act, 1985.
3. On the other hand, Shri Rajesh Ostwal Ld. Counsel for the respondent submits that once the imported goods have been classified under Chapter heading 3105 the same attained finality and thereafter for the purpose of excise the classification cannot be changed. Therefore the goods of chapter heading 3105 cleared after repacking does not attract excise duty being a non manufactured goods.
3. We have carefully considered the submissions made by both the sides. We are of the view that only because the Customs has classified the goods under Chapter heading 3105 it will not be binding on the Central Excise classification. The classification of the Central Excise has to be decided by taking into consideration the actual nature of the goods. It is the submission of the Revenue that the goods are classifiable under Chapter 2840. However, we observe that the Ld. Commissioner (Appeals) has decided the entire issue on the ground that the imported goods Solubor has been classified under Custom chapter heading 3105. Therefore the classification for the purpose of excise cannot be changed. However he has not decided the classification on the basis of the nature of the goods. We are therefore of the view that the Ld. Commissioner (Appeals) is supposed to decide the classification of Solubor under Central Excise Tariff Act without getting influenced by the classification decided by the Customs authority in case of import of the goods. We, therefore remand the matter to the Commissioner (Appeals) to pass a fresh order. In view of our above observation, the appeals are allowed by way of remand to the Commissioner (Appeals).
(Pronounced in court on 05/01/2017 ) (Raju) Member (Technical) (Ramesh Nair) Member (Judicial) SM.
4Appeal No. E/245 & 1345/06