Custom, Excise & Service Tax Tribunal
Shree Pushkar Petro Products Ltd vs Commissioner Of Ce & Service Tax on 4 July, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I Application No. E/EH/92956/16 Appeal No. E/87871/13 (Arising out of Order-in-Original No. 09/CEX/COMMR/KOP/2013 dated 25.04.2013 passed by Commissioner of Central Excise & Service Tax, Kolhapur) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Devender Singh, 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?
================================================ Shree Pushkar Petro Products Ltd. Appellant Vs. Commissioner of CE & Service Tax, Respondent Kolhapur Appearance: Shri Anil Balani, Advocate for appellant Shri V.K. Agarwal, Addl. Commissioner (AR), for respondent CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. Devender Singh, Member (Technical) Date of Hearing: 04.07.2016 Date of Decision: 04.07.2016 ORDER NO Per : M.V. Ravindran
This application is filed for out-of-turn hearing of appeal No. E/87871/13.
2. After hearing both sides, we find that the issue is covered by the Notification No. 4/2016-C.E. (N.T.) dated 12.02.2016 issued by the Govt. of India. Accordingly, we allow the application for out-of-turn hearing of appeal and take up the appeal itself for disposal.
3. On perusal of records, we find that the allegation against the appellant is mis-classification of the product Di-calcium Phosphate for the period June 2008 to October 2011 wherein it is alleged that the appellant is using Rock Phosphate, Hydrated lime and Lime Stone powder which would not fall under the category of Animal Feed Grade. It has been correctly pointed out by the learned Counsel that the Govt. of India vide Notification No. 4/2006-CE (N.T.) dated 12.06.2006 has held that Central Excise duty is not payable on such goods. We reproduce the said Notification:-
Whereas the Central Government is satisfied that according to a practice that was generally prevalent regarding levy of duty of excise (including non-levy thereof) under Section 3 of the Central Excise Act, 1944 (1 of 1944), (hereinafter referred to as the said Act), on Di-Calcium Phosphate (animal feed grade) of rock phosphate origin falling under heading 2835 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the said goods), was not being levied according to the said practice, during the period commencing on the 1st day of February, 2008 and ending with the 1st day of February 2014.
2. Now, therefore, in exercise of the powers conferred by Section 11C of the said Act, the Central Government hereby direct that the whole of the duty of excise payable under Section 3 of the said Act on the said goods but for the said practice, shall not be required to be paid in respect of the said goods on which the said duty of excise was not levied during the period aforesaid in accordance with the said practice.
4. In view of the above Notification, we hold that the impugned order is not sustainable accordingly, the impugned order is set aside and the appeal is allowed with consequential relief, if any. (Dictated in Court) (Devender Singh) Member (Technical) (M.V. Ravindran) Member (Judicial) nsk 1 2 Application No. E/EH/92956/16 Appeal No. E/87871/13