Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise vs Valplus Biotech Ltd on 29 August, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. II APPEAL No.E/3040 & 3041/04 (Arising out of Order-in-Appeal No.PI/70 & 71/2004 dated 06/07/2004 passed by Commissioner of Central Excise & Customs (Appeals), Pune) For approval and signature: Honble Mr. P.R. Chandrasekharan, Member (Technical) Honble Mr. Anil Choudhary, 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 :Yes 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, Mumbai Appellant Vs. Valplus Biotech Ltd., Respondent Appearance:
Shri.V.R.Kulkarni, Dy. Comm. (AR) for appellant None for respondent CORAM:
Honble Mr. P.R.Chandrasekharan, Member (Technical) Honble Mr.Anil Choudhary, Member (Judicial) Date of Hearing : 29/08/2013 Date of Decision : 29/08/2013 ORDER NO Per: P.R.Chandrasekharan
1. The Revenue is in appeal against Order-in-Appeal No.PI/70 & 71/2004 dated 06/07/2004 passed by Commissioner of Central Excise & Customs (Appeals), Pune.
2. The issue involved in these appeals relates to levy of excise duty on cut flowers cleared by the respondent, M/s.Valplus Biotech Ltd., & M/s.Praj Agro Vision Ltd., Pune. The adjudicating authority held that since the appellant did not have permission from the Development Commissioner of EPZ for DTA sales, the cut flowers cleared by the appellant would be leviable to excise duty at the rate equivalent to aggregate of the customs duty leviable on cut flowers imported into India and accordingly confirmed the demands. The respondents filed appeals before the lower appellate authority and held that inasmuch as cut flowers are not excisable goods, the question of levying any duty under Section 3 of the Central Excise Act, 1944 would not arise and only Central Excise duty can be charged under 3 of the Central Excise Act, in respect of DTA clearances by 100% EOU. The Ld. Appellate authority also relied on the Larger Bench decision in the case of Vikram Ispat Vs. Commissioner 2006 (196) ELT 800 (Tri-LB) wherein it had been held that under Section 3, of the Act, the Customs Duty is not leviable and what can be charged in respect of clearance from 100% EOU into DTA is only excise duty leviable under section 3 of the Act.
3. The Ld. Deputy Commissioner (AR) appearing for the Revenue submits that in terms of Notification No.126/94-Cus dated 03/06/1994 there is a provision for charging of duty on non-excisable items also equal to the Customs duty leviable on the imported inputs which have gone into production or manufacture of the non-excisable items and therefore, the demand of duty on cut flowers is sustainable in law.
4. None appeared for the respondents.
5. Section 3 of the Central Excise Act, so far as it relates to the levy of excise duty on 100% EOU reads as follows:
Provided that the duties of excise which shall be levied and collected on any excisable goods which are produced or manufactured, by a 100% EOU undertaking and brought to any other place in India shall be an amount equal to the aggregate of the duties of customs which should be leviable under the Customs Act, 1962 or any other law for the time being in force, on like goods produced or manufactured outside India if imported into India, and where the said duties of customs are chargeable by reference to their value; the value of such excisable goods shall, notwithstanding anything contained in any other provision of this Act, be determined in accordance with the provisions of the Customs Act, 1962 and the Customs Tariff Act, 1975.
5.1 As per Section 2 (d) of the Act, excisable goods means goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 as being subject to a duty of excise and includes salt. The period involved in these appeals is April 1998 to September 1998 and January 1999 to June 1999 & July 1999 to September 1999. During this period, the Central Excise Tariff did not specify cut flowers as excisable goods nor any rate of duty was prescribed for cut flowers. Even in the amended tariff effective from 2008 where the excise tariff, has been aligned with the customs tariff cut flowers fall under Chapter 6 and there is no rate of duty mentioned against cut flowers and the column regarding rate of duty is left blank. This implies that even after amendment to the Central Excise Tariff in 2008 cut flowers remains a non-excisable goods. If the goods are non-excisable goods, the question of levy of excise duty would not arise at all. Therefore, there is absolutely no merit in the appeals filed by Revenue. Accordingly, the same are dismissed.
(Dictated in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) pj 1 4