Custom, Excise & Service Tax Tribunal
Cce, Jaipur-Ii vs M/S.Bhilwara Spinners Ltd on 12 December, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
BENCH-DB
COURT-II
Excise Appeal No.E/2064/2006-EX[DB] with
E/Cross/241/2006
[Arising out of Order-in-Appeal No.165 (HKS) CE/JPR-II/2006 dated 20.03.2006 passed by the Commissioner (Appeals-II), CCE, Jaipur].
For approval and signature:
HONBLE MR. RAKESH KUMAR, MEMBER (TECHNICAL)
HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
1. Whether Press reporters may be allowed to see 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
of the Order?
4. Whether Order is to be circulated to the Departmental
authorities?
__________________________________________________
CCE, Jaipur-II Appellant
Vs.
M/s.Bhilwara Spinners Ltd. Respondent
Present for the Appellant : Shri.R.K.Grover, DR
Present for the Respondent: Shri.Jitin Singhal, Advocate
Coram:HONBLE MR. RAKESH KUMAR, MEMBER (TECHNICAL)
HONBLE MR.S.K. MOHANTY, MEMBER (JUDICIAL)
Date of Hearing/Decision: 12/12/2014
Final ORDER NO. 54932/2014
PER: RAKESH KUMAR
The facts leading to this appeal are as under:-
1.1 The respondents are manufacturers of spun yarn. They availed cenvat credit on excise duty paid on the inputs used in or in relation to manufacture of their final products. They exported yarn under bond without payment of duty in terms of Rule 19 of the Central Excise Rules, 2002 and by virtue of Rule 6 (6) of the Cenvat Credit Rules, 2004 in respect of the inputs/input services used in or in relation to the manufacture of the goods exports under bond/LTU, they could avail the cenvat credit. The dispute is in respect of the goods exported under Bond without payment of duty during July, 2005, in respect of which, the appellant filed a claim for cash refund of the accumulated cenvat credit in terms of Rule 5 of the Cenvat Credit Rules, 2004 on the ground that they could not utilize the cenvat credit for payment of duty on clearances for home consumption. The Asstt. Commissioner vide order in original dated 08.12.2005, rejected the refund claim of Rs.2,88,800 on the ground that this refund claim is in respect of the exports under Bond made against under advance licence scheme and that grant of cash refund of the cenvat credit would result in double benefit. On appeal being filed to Commissioner (Appeals) against this order of the Asstt. Commissioner, the Commissioner (Appeals) vide order in appeal dated 21.03.2006, set aside the Asstt. Commissioners order and allowed the appeal. Against this order of the Commissioner (Appeals) the Revenue is in appeal and in respect of Revenues appeal the respondent have filed a Cross-Objection.
2. Heard both the sides.
3. Shri R.K. Grover, ld. D.R., assailed the impugned order by reiterating the grounds of appeal and pleaded that the cash refund under Rule 5 of the Cenvat Credit Rules is subject to the condition that the manufacturer has not availed the benefit of duty draw-back or of input duty rebate under Rule 18 of the Central Excise Rules, that in this case the exports have been made under Advance License Scheme and Advance Licence benefit together with the Cenvat Credit would amount to double benefit, and that in view of this, the impugned order is not correct. He also relied upon the Apex Courts judgment in the case of Union of India v/s. Playworld Electronics Pvt. Ltd. reported in 1989 (41) ELT 368(S.C.) wherein the Apex Court has observed that while it is true that tax planning may be legitimate provided it is within the frame-work of the law, colourable devices cannot be part of tax planning and it is wrong to encourage avoidance of tax by dubious methods.
4. Shri Jitin Singhal, Advocate, ld. Counsel for the respondent, pleaded that while during the period of dispute, in terms of provisions of section 35 B (2) of the Central Excise Act, 1944, the filing of the appeal against an order of the Commissioner (Appeals) was to be authorized by a Committee of Commissioners, while in this case, the same person has signed on the authorization as Commissioner, Central Excise, Jaipur-I and also as Commissioner, Central Excise, Jaipur-II, that this authorization is against the spirit of the requirement of Section 35 B (2) that the appeal to Tribunal against the Commissioner (Appeals)s order is to be authorized by the Committee of Commissioners, as one person cannot constitute Committee, that in view of this position, the Revenues appeal is not maintainable on this ground itself, that in any case, even on merits, there is no infirmity in the impugned order, as the issue involved in this case stands decided in favour of the respondent by this Tribunals judgment in the respondents own case for the previous period reported in 2011 (269) ELT 384 TRI (Del.), that same view has been taken by the Tribunal in the appellants own case for the previous period decided by the Tribunal vide judgment reported in 2008 (226) ELT 222 (Tri.Del.), that the only prohibition in Rule 5 of the Cenvat Credit Rules 2004 for granting cash refund of the accumulated cenvat credit is that the manufacturer in respect of the goods exported has not availed input duty rebate or duty draw-back, that there is no requirement that for claiming cash refund under Rule 5, the exports should not have been made against advance licence, and that since in this case neither draw-back benefit has been claimed nor the input duty rebate under Rule 18 of the Central Excise Rules has been claimed, the denial of the refund under this rule is incorrect. He therefore plead that there is no infirmity in the impugned order.
5. We have considered the submissions from both the sides and perused the records. Firstly, we agree with the preliminary objection raised by the ld. Counsel for the respondent that the appeal is not maintainable as the authorisation by the Committee of Commissioners is not in terms of provisions of rule 35 B (2), as the same person holding the charge of Commissioner, Central Excise, Jaipur-I as well as Commissioner Central Excise, Jaipur-II has signed the authorization. The committee of Commissioners mentioned in Section 35 B (2) must necessarily consist of two Commissioners. Even on merits also, the issue stands decided against the Department by detailed order of the Tribunal in the respondents own case reported in 2011 (269) ELT 384 (Tri.Del.). In view of this, we do not find any merit in the appeal of the Revenue. The Revenues appeal is dismissed. The cross objection is also stands disposed of.
[Dictated & Pronounced in the open Court].
(S.K.MOHANTY) (RAKESH KUMAR) MEMBER (JUDICIAL) MEMBER (TECHNICAL) Anita ?? ?? ?? ?? 0 2