Custom, Excise & Service Tax Tribunal
Studio Printall (New Delhi) Pvt. Ltd vs C.C.E. Delhi I on 25 September, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI COURT NO. III Excise Appeal No. E/689/2005-EX[DB] [Arising out of Order-In-Original No. 40/2004 dated 30.11.2004 passed by Commissioner of Central Excise, Delhi] For approval and signature: Honble Mr. G. Raghuram, President Honble Mr. R.K. Singh, Technical Member 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? Studio Printall (New Delhi) Pvt. Ltd. Appellant Vs. C.C.E. Delhi I Respondent
Appearance:
Shri K. Anarudh, Advocate for the Appellants Shri M.S. Negi, DR for the Respondents Coram:
Honble Mr. G. Raghuram, President Honble Ms. R.K. Singh, Member (Technical) Date of Hearing: 25.09.2014 FINAL ORDER NO._53967 /2014_ Per R.K. Singh:
The appellant are before CESTAT second time. In the earlier round, CESTAT vide final Order No. 675-676/04-NB-A dated 2.7.204 remanded the case to the Commissioner with directions to requantify the duty demand in accordance with the classification approved by CESTAT and to extend the exemption under various notifications for which the appellants are entitled to.
2. The Commissioner Accordingly passed denovo Order-in-Original No. 40/2004 confirming duty demand of Rs. 5,94,530/- alongwith interest and mandatory equal penalty. The appellants have filed this appeal on the ground that the impugned order-in-original has been passed inter-alia denying them the benefit of notf. No. 108/95 dated 28.8.1995 to which they are entitled and hence aggrieved with the impugned order.
3. We find that the Commissioner has denied the benefit of the said notification on the grounds contained in paras 40, 41 & 42 of the impugned order. These paras are reproduced below for convenience.
Now I take up the noticees claim of exemption under the scope of Notification No. 108/95 CE dated 28.8.92 in regards to supply of goods (Community growth charts) to UNICEF. The notification stipulates that the exemption from Central Excise duty is available to the manufactures for the supplies made to the UN organisations provided that before clearance of the said goods, the manufacturer produces before the Assistant Commissioner of Central Excise having jurisdiction of his factory:
(i) In case the said goods are intended for the official use by United Nations or an international organization ---- for use in a project that has been approved by the Government of India and financed by such an organization that the said goods are required for the execution of the said project and the project has duly been approved by the Government of India; or
(ii) Supplied to a project that has been approved by the Government of India and financed (whether by a loan or a grant) by an international organization listed in the said Annexure, a certificate from an officer not below the rank of Deputy Secretary to the Government of India, in the Ministry of Finance (Department of Economic Affairs) that the said goods are required for the execution of the said project and that the said project has duly been approved by the Government of India.
The notice, however, claiming the exemption on the strength of a certificate issued by Unicef which reads as:
(1) UNITED NATIONS CHILDRENS FUND (UNICEF) is exempted from payment of sales tax, octroi/ toll taxes on goods purchased by it for its assisted government programmes in India.
(2) It is requested that truck number _______ carrying Community Growth Chart in English (2120 Pcs) for free distribution against UNICEF order number IND/Y6680 dated 9/11/95 be cleared on priority basis without payment of sales tax, octroi/ toll levy.
41. So, it is crystal clear that the certificate on the strength of which the noticee claims exemption only allows exemption form sales Tax, Octroi/ Toll taxes and has no mention of Excise duty exemption. Further, there is no mention of approval by the Government of India or the certificate does not mention of any project and has not been issued by the prescribed authority covering the conditions for exemption in terms of Notification No. 108/95.
42. The noticee never files declaration and has never fulfilled the conditions of the said notification. The filing of declaration to the jurisdictional Assistant Commissioner is not an only formality or mere procedural requirement. It is settled law that conditions of exemption notifications to be fulfilled for claiming its benefit. This principle has been held in he Apex Court judgment in the case of Eagle Flask Industries Ltd. Vs. Commissioner of Central Excise, Pune [2004(171)ELT296(SC)].
4. We have perused the certificate issued by UNICEF, (which is reproduced in para 40(1) quoted above). The certificate makes it clear that the impugned goods were for official use of UNICEF. This point is not disputed by the adjudicating authority.
5. We reproduce notification No. 108/95 below:
In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excises and Salt Act, 1944 (1 of 1944), read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts all goods falling under the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the said goods) when supplied to the United Nations or an international organization for their official use or supplied to the projects financed by the said United Nations or an international organization and approved by the Government of India, from the whole of -
(i) the duty of excise leviable thereon under section 3 of the Central Excise Act, 1944 (1 of 1944); and
(ii) the additional duty of excise leviable thereon under sub-section (1) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957):
Provided that before clearance of the said goods, the manufacturer produces before the Assistant Commissioner of Central Excise having jurisdiction over his factory,-
(a) in case the said goods are intended for the official use by the United Nations or an international organization, a certificate from the United Nations or that international organization that the said goods are intended for such use;
(b) in case the said goods are - (i) supplied to an international organisation listed in the Annexure appended to this notification for use in a project that has been approved by the Government of India and financed (whether by a loan or a grant) by such an organisation, a certificate from such an organisation that the said goods are required for the execution of the said project and that the said project has duly been approved by the Government of India; or (ii) supplied to a project that has been approved by the Government of India and financed (whether by a loan or a grant) by an international organization listed in the said Annexure, a certificate from an officer not below the rank of Deputy Secretary to the Government of India, in the Ministry of Finance (Department of Economic Affairs) that the said goods are required for the execution of the said project and that the said project has duly been approved by the Government of India. (c) in case the said goods are intended to be supplied to a project financed (whether by a loan or a grant) by the World Bank, the Asian Development Bank or any international organization other than those listed in the Annexure, and (i) if the said project has been approved by the Government of India, a certificate from the executive head of the Project Implementing Authority and countersigned by an officer not below the rank of a Joint Secretary to the Government of India, in the concerned Line Ministry in the Government of India, that the said goods are required for the execution of the said project and that the said project has duly been approved by the Government of India, and (ii) if the said project has been approved by the Government of India for implementation by the Government of a State or a Union Territory, a certificate from-the executive head of the Project Implementing Authority and countersigned by the Principal Secretary or the Secretary (Finance), as the case may be, in the concerned State Government or the Union Territory, that the said goods are required for the execution of the said project, and that the said project has duly been approved by the Government of India for implementation by the concerned State Government. Explanation. - For the purposes of this notification,- (a) "international organization" means an international organization to which the Central Government has declared, in pursuance of section 3 of the United Nations (Privileges and Immunities) Act, 1947 (46 of 1947), that the provisions of the Schedule to the said Act shall apply; (b) "Line Ministry" means a Ministry in the Government of India, which has been so nominated with respect to a project, by the Government of India, in the Ministry of Finance (Department of Economic Affairs).
It is evident from the above notification that in case the goods are for official use by UNICEF (which is admittedly a U.N. Body), only a certificate from the U.N. body to that effect is sufficient to grant the said exemption and no approval by Govt. of India is stipulated for that purpose. It is immaterial that the certificate in question did not mention exemption from Excise duty (even if it did mention sales tax/ octroi etc.) because for the benefit of notf. 108/95-CE what is required is a certificate to the effect that the goods are meant for their official use which the certificate in question in effect duly certifies and in any case that the goods were for official use of UNICEF is not in question in the present case. The Supreme Court judgements regarding interpretation of statutes and exemption notification in cases of Mangalore Chemicals and fertilizers vs. Dy. Commissioner 1991 (55) ELT 437 (SC) and Novapan Indus Ltd. US CCE Hyderabad 1994 (73) ELT 769 (SC) are relevant in this regard.
6. Thus, we hold that the appellants are entitled to the benefit under notif. No. 108/95 dated 28.8.1995 in respect of supplies made to UNICEF for their official use as certified by them (i.e. UNICEF) and therefore set aside the impugned order and remand the case to the Commissioner for denovo adjudication in terms of CESTAT order No. 675-676/04-NB-A dated 2.7.2004 after allowing the benefit of Notf. No. 108/95-CE dated28.08.95 in respect of such supplies made to UNICEF.
(Justice G. Raghuram) President (R.K. Singh) Member (Technical) NSB