Custom, Excise & Service Tax Tribunal
C.C.E., Jaipur-Ii vs Devi Lal Kutir Shop on 11 June, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
Court-III
Appeal No. E/1499-1500/2006-EX[DB]
(Arising out of OIA No. 121-122(HKS)CE/JPR-II/2006 dt.8.2.06 passed by Commissioner of CCE(Appeals), Jaipur)
Date of Hearing: 04/06/2015
Date of Order:11/06/2015
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would 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 Department Authorities?
C.C.E., Jaipur-II Appellant
Vs.
Devi Lal Kutir Shop Respondent
Appearance:
Present for the Appellant: Shri Pramod Kumar, AR Present for the Respondent: Shri Surbhi Sinha, Advocate Coram: Honble Mr. Rakesh Kumar, Member (Technical) Honble Smt.Sulekha Beevi C.S., Member (Judicial) Final Order No. 51867-51868/2015 Per: Sulekha Beevi C.S. The short issue for consideration in this appeal is whether village Atun in which the factory premises of appellants is situated falls in rural area or urban area for admissibility of concessional rate of duty under Notification No. 9/2001- CE dated 1.03.2001 and Notification No. 9/2003 CE dated 1.03.2003.
2. Breif facts are as under:-
During the period 01.04.2002 to 24.07.2002,the appellants had manufactured and cleared 4,89,500 kg of laundry soap bearing brand name DCM No.1 of another person namely M/s Siel Foods & Fertilizers Industries , Delhi claiming concessional rate of duty under exemption Notification No. 9/2001- CE dated 1.03.2001 as amended. Again, during the period 01.04.2003 to 06.08.2003, the appellants had manufactured and cleared 1, 05,000kg. of laundry soap bearing brand name DCM No.1of another person namely M/s Siel Foods & Fertilizers Industries , Delhi and also 1,26,500 nos. (100 gms each) of Toilet soap bearing brand name RCM of M/s Fashion Suiting Pvt. Ltd, Bhilwara claiming concessional rate of duty under exemption Notification No. 9/2003 CE dated 1.03.2003 as amended. Respective Para 4 of both Notifications stipulated as under:
The exemption contained in this notification shall not apply to the specified goods bearing a brand name or trade name whether registered or not of another person except in the following cases, namely;
(a).
(b) where the goods bear a brand name or trade name of
(i) The Khadi & Village Industries Commission or
(ii) A State Khadi & Village Industries Board or
(iii) The National Small Industries Corporation or
(iv) A State Small industries Development Corporation or
(v) A State Small Industry Corporation Where the specified goods are manufactured in a factory located in rural area.
As per explanation (H) to the said Notifications,rural area means the area comprised in a village as defined in the land revenue records excluding
(i) The area under any municipal committee, muncipal corpration, town area committee, cantonment board or notified area committee,or
(ii) any area that may be notified as an urban area by the Central Government or a State Government.
3. According to the Department, on inquiry from the Muncipal Corporation, Bhilwara , it was clarified that village Atun where the unit of the appellants existed had been notified as urban area by the Rajasthan Government under Sub section (1) of Section 3 of the Rajasthan Urban improvement Act,1959( Rajasthan Act,35 of 1959) vide order No. F-10 (96) UDH/81 dated 03.07.1981.Basing upon this order dated 03.07.1981 the appellants were issued separate show cause notices for the respective periods calling upon them to pay central excise duty , penalty and interest thereof. After adjudication, the demands for both periods were confirmed vide separate orders in original No.378/04-05 and 379/04-05 both dated 09.11.2004. Aggrieved, the assesse filed appeal and the Commissioner (Appeals) allowed the appeals by setting aside the duty demand. Against the said order of the Commissioner( Appeals) dated 1/2006 the Revenue is now before us .
4. The Ld. DR submitted that the Deputy Secretary to the Government of Rajasthan, vide his order number F 10 (6)UDH/81 dated 03/07/1981 had notified the village Atun in the urban area of Bhilwara. Further that the Commissioner of Municipal Corporation, Bhilwara vide his letter dated 29/01/2003 has clarified that the village Atun has been declared as urban area. Similarly that Secretary of the Urban improvement Trust, Bhilwara by his noting dated 14/02/2003 had endorsed clarifying that the village Atun falls under the urban area of Bhilwara. That therefore the respondents are not entitled to the benefit of concessional duty granted by the notification.
5. Per contra, the Ld. Counsel, MS Suarbhi Sinha appearing on behalf of respondents strenuously argued that it is highly incorrect to arrive at a decision whether village Atun is a rural area or urban area by basing upon the order dated 03/07/1981. According to her, this order does not notify village Atun to be included in urban area. The order is nothing but an order directing the authorities to conduct civic survey. The adjudicating authority has wrongly interpreted this order as an order notifying the places to be included in urban area. She submitted that the Municipal Council, Bhilwara vide letter No.NPBH/survey/2003/7165 dated 19.20/09/2003 has informed that there has been no change in the limits of Nagar Parishad since 09/01/1970. It is also her case that in the letter dated 29.01.2003 given by municipal counsel and relied by the appellants, it is nowhere stated that village Atun is in municipal limit. She drew our attention to clause (v) of section 2 of the Rajasthan Land Revenue ( Amendment ) Act, 2002 which explains the meaning of urbanizable limits. She placed reliance on the judgments reported in CCE, Chennai II vs BN Agro Foods and Co. 2012 (285) ELT 300, Akash Housing Ltd vs CCE, Chennai II, 2009 (243) ELT 78, Karunya Matha Social Centre vs CCE Cochin 2004 (168) ELT 226, CCE Chennaia vs Blue Bay Mineral Water Co.2011 (246) ELT 249, Sanchez Healthcare (p) ltd.vs CCE Coimbatore 2009 (233) ELT 386, Katyani Foods and Beverages (p) Ltd. vs CCE Meerut, 2004 (170) ELT82.
6. Heard both sides. We have examined the records carefully.
7. The factory of the appellants are undisputedly situated in village Atun, Bhilwara Distrct. The appellants contend that village Atun has been notified as urban area vide order dated 03/07/1981. The said order is reproduced as below;-
In exercise of the powers conferred by subsection 1 of section 3 of the Rajasthan Urban improvement act, 1959 (Rajasthan act 35 of 1959) the State Government hereby direct that a civic survey shall be carried out and a master plan shall be prepared by the Chief town planner and architectural adviser, Rajasthan, Jaipur for the Urban Area of Bhilwara which shall include the following revenue villages Village Atun has been mentioned at serial No. 14.
8. On examining the above order there is nothing in the order which states that village Atun is notified as an urban area. The order only gives a direction to the authority to conduct a civic survey for preparation of a master plan. It is submitted by the counsel for the respondent that the Government of Rajasthan vide Rajasthan Land Revenue (Amendment) act, 2002 has clarified the position. Clause v of section 2 reads as under:-
(v) After the existing explanation II, following new explanation shall be added namely:-
III for the purpose of this section, urbanisable limits means, the urbanisable limits as indicated in the master plan or the master development plan of a city or town prepared under any law for the time being in force, and where there is no master plan or master development plan, the municipal limits of the area.
9. The appellants do not have a case that master plan has been prepared including Atun in urban area .It is crystal clear that the original authority had wrongly interpreted the order dated 03.07.1981 as an order notifying village Atun being included in urban area. The view taken by the Commissioner (Appeals) is correct and we do not find any ground for interference. Further the decisions cited by the respondents also apply to the issue under consideration .In view of the above, we hold that respondents are entitled to the benefit of the Notification No. 9/2001- CE dated 1.03.2001 and Notification No. 9/2003 CE dated 1.03.2003. The appeals stand dismissed.
(Pronounced in the open court 11/06/2015)
(Sulekha Beevi C.S.) (Rakesh Kumar)
Member (Judicial) Member (Technical)
mk
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