Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Pune-I vs M/S Soex Flora Pvt. Ltd on 6 September, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeal No. E/2664 to 2666/04 (Arising out of Order-in-Appeal No. P-I/34-36/2004 dated 28.5.2004 passed by the Commissioner of Central Excise (Appeals), Pune-I). For approval and signature: Honble Shri P.R. Chandrasekharan, Member (Technical) Honble Shri 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, Pune-I Appellant Vs. M/s Soex Flora Pvt. Ltd. Respondent Appearance: Shri Ahibaran, Addl. Commissioner (AR) for Appellant Ms. Anjali Hirawat, Advocate with Shri Bharat Raichandani, Advocate for Respondent CORAM: SHRI P.R. CHANDRASEKHARAN, MEMBER (TECHNICAL) SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing: 06.09.2013 Date of Decision: 06.09.2013 ORDER NO. Per: P.R. Chandrasekharan
There are three appeals filed by the Revenue against Order-in-Appeal No. P-I/34-36/2004 dated 28.5.2004 passed by the Commissioner of Central Excise (Appeals), Pune-I.
2. Respondent is M/s Soex Flora Pvt. Ltd., who is a 100% EOU engaged in growing of flowers. The issue relates to exigibility to duty of cut-flowers sold by the respondent in the DTA. The jurisdictional adjudicating authority confirmed the duty demands on the cut-flowers cleared by the respondent to the DTA under the provisions of Customs Notification No. 126/94-Cus dated 3.6.1994 and also imposed penalties. In appeal, the lower appellate authority held that since cut-flowers are not excisable goods, the question of levy of excise duty would not arise and accordingly, set aside the demand and allowed the appeals. Aggrieved of the same, the Revenue is before us.
3. In the appeal memorandum filed by the Revenue, it is stated that under Notification No. 126/94-Cus dated 3.6.1994, it has been provided that duty demand can be made on imported inputs, if any used, in the production of the cut-flowers in question and the lower appellate authority has overlooked the provision of law. Hence, the impugned order is bad in law.
4. The learned Addl. Commissioner (AR) appearing for the Revenue reiterates the grounds urged in the appeal memorandum.
5. The learned Counsel appearing for the respondent submits that in the appellants own case for the previous period, this Tribunal vide Order No. A/397-400/13/EB/C-II dated 18.4.2013 set aside the appeals filed by the Revenue and dismissed the appeal as devoid of merits. Therefore, in the present case also, the same ratio should apply and be followed.
6. We have carefully considered the submissions made by both sides. As per the show-cause notice differential duty has been demanded on cut flowers/rose cleared into DTA without permission of the competent authority. Cut flowers are not excisable and, therefore, the question of demand any excise duty on the cut flowers would not arise. As regards the demand of duty on the inputs used in the production of cut flowers, the demand should have been made accordingly and not on cut flowers as is emerging in the show-cause notice. Therefore, the impugned demands are not sustainable in law as held by this Tribunal in the order dated 18.4.2013 in the appeal filed by the Revenue. Hence, the present appeals field by the Revenue are devoid of merits and accordingly, we dismiss the same.
(Dictated and pronounced in Court)
(Anil Choudhary) (P.R. Chandrasekharan)
Member (Judicial) Member (Technical)
Sinha
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