Custom, Excise & Service Tax Tribunal
(I) M/S. Vinayaka Steels Ltd vs (I) Commissioner Of Customs, Central ... on 6 September, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE COURT - I Appeal No: E/950/2009 & E/1793/2010 (Arising out of (i) Order-in-Appeal No: 32/2009 (H-I) CE dated 29.4.2009 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Hyderabad & (ii) Order-in-Appeal No.154/2010-CE dated 31.5.2010 by the Commissioner of Central Excise (Appeals-I), Bangalore.) Date of Hearing: 06.09.2013 Date of decision: 06.09.2013 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3. Whether their Lordship wish to see the fair copy of the Order? Seen 4. Whether Order is to be circulated to the Departmental authorities? Yes (i) M/s. Vinayaka Steels Ltd. (ii) M/s. Grasim Industries Ltd. (Unit: Birla Super Bulk Terminal) (Now known as M/s. Ultratech Cement Limited) Appellant Vs. (i) Commissioner of Customs, Central Excise and Service Tax (Appeals), Hyderabad. (ii) Commissioner of Central Excise (Appeals), Bangalore. Respondent
Appearance For the appellants : Mr. S. Raghu, Advocate For the respondents : Mr. R. Gurunathan, Addl. Commissioner (AR) CORAM SHRI M. V. RAVINDRAN, HONBLE MEMBER (JUDICIAL) SHRI B.S.V. MURTHY, HONBLE MEMBER (TECHNICAL) FINAL ORDER Nos. 26542-26543 / 2013 Order per: M. V. Ravindran These two appeals raise a common issue and hence are disposed of by a common order.
2. The issue in these appeals is whether during the period November 2007 to December 2008 had cleared excisable goods to SEZ developer under bond / letter of undertaking without payment of duty; to be considered as exempted goods. Lower authorities were of the view that the appellants have to pay 10% of the value of the goods, as clearances made to SEZ developer would fall under the category of exemption. Both the lower authorities have held against the assessees.
3. At the outset, learned counsel submits that the issue is now squarely covered by the order of this Tribunal in the case of Sujana Metal Products vs. CCE: 2011 (273) E.L.T. 112 (Tri.-Bang.) and produces the copy of the same. It is also his submission that this issue was taken in appeal by the Revenue before the Honble High Court of Andhra Pradesh in Central Excise Appeal No.40/2012 which was decided on 2.7.2013 wherein the said appeal was dismissed by the Honble High Court and which would mean upholding the decision of the Tribunal.
4. Learned departmental representative fairly submits that the issue is covered by the judgment of the Tribunal in the case of Sujana Metal Products (supra).
5. On a careful consideration and submissions made by both sides and perusal of the records, we find there being undisputed on the fact that the demand is of 10% of the value of the goods cleared by the appellant to SEZ developers and having not maintained separate accounts, is required to pay the amount as per the provisions of Rule 6(3) of the CENVAT Credit Rules, 2004.
5.1 On perusal of the decision of this Bench in the case of Sujana Metal Products (supra), we find that the contentions put forth by the learned counsel was correct and the issue is squarely covered by the said judgment. We also find strong force in the contentions raised by the learned counsel that in unreported judgment of the Honble High Court of Andhra Pradesh, wherein Revenues appeal was dismissed by their lordships in their judgment dated 2.7.2013. As the issue has attained finality in the hands of High Court of Andhra Pradesh on an identical issue decided by this Bench, we find that the impugned order is unsustainable and liable to be set aside and we do so. The impugned order is set aside and the appeals are allowed.
(Operative portion of this Order was pronounced in open court on conclusion of hearing) (B.S.V. MURTHY) Member (Technical) (M. V. RAVINDRAN) Member (Judicial) rv 3