Customs, Excise and Gold Tribunal - Bangalore
Commissioner Of C. Ex., Cochin vs Bpl Systems & Projects on 1 March, 2002
Equivalent citations: 2002(144)ELT437(TRI-BANG)
JUDGMENT S.S. Sekhon, Member (T)
1. Brief facts of the case are as follows :
(a) The respondents manufacturers inter alia of EPABX systems. They removed on a CT-3 certificate, without duty, as provided under Notification 123/81-C.E., dt. 2-6-81, an EPABX system to M/s. Cochin Minerals and Rutiles Ltd. an 100% Export Oriented Unit.
(b) Duty was demanded and penalty imposed on the manufacturer, the appellant herein, by the Asstt. Collector. It was held that EPABX did not fall under category of capital goods, and not used in with manufacture of an article, in terms of Notification 123/81-C.E., dt. 2-6-81.
(c) The Commissioner (Appeals) set aside the order on the ground that the finding arrived by the Asstt. Collector as regards the EPABX not falling under the terms of capital goods and its use in the manufacture in the premises of consignee EOU was beyond his jurisdiction as a valid CT-3 existed for the clearance.
2. Revenue has come in appeal on the ground that :
(i) EPABX is not capital goods, components, raw material and consumable stores and cannot be considered as material, brought in the EOU in connection with the manufacture of an article for export by the consignee EOU nor are they used in such connection. EPABX are not covered by Notification 123/81-CE.
(ii) Duty therefore is required to be paid on removal of such EPABX. 3. We have considered the submissions made and find that : (a) The Assistant Collector had determined : (i) Removals of EPABX was without filing of classification list prior to issue of gate pass under Rule 52A on the CT-3 in question. (ii) EPABX is not material covered under the definition of capital goods or other material exempted vide Notification 123/81-CE.
(iii) Earlier they had cleared Push Button Telephone and paid duty after Commissioner (Appeals) had rejected their plea.
(b) The appellants have pleaded that Commissioner (Appeals) order was in appeal in Tribunal. While the ld. SDR has brought to our notice that the Tribunal in the case reported as BPL Systems and Projects Ltd. v. CC, Cochin [1999 (109) E.L.T. 511], has not considered "Push Button Telephones" to be eligible for benefit of Notification 123/81-C.E. when supplied to an EOU on CT3's. No material is in the records before the lower authorities as to how the respondents is claiming the use of EPABX supplied to be used for the manufacture of the goods by the consignee 100% EOU. Nor has any such material placed before us. The case of the respondent was only on jurisdiction and it was strongly urged and decision were cited that wherever notifications provided for Chapter X clearances, the duty demands were on the L6 holders and not L4 holders' i.e. the consignee and not the consignor while learned DR relied on 1984 (15) E.L.T. 206 & 1999 (112) E.L.T. 992 to justify the demand on L4 holders i.e. consignor.
(c) A perusal of Notification 123/86 itself, reveals that the procedure in Appendix to this notification should be followed. This Appendix in Para 2(j) provides for how, "Duty leviable on excisable goods not duly accounted for as having been utilised in the manufacture and packaging of goods for export etc." is to be dealt with; after stipulating that loss in transit and duty thereon shall be on consignee (Para 2) and casts accounting of the same, as the responsibility of Central Excise Officer incharge of the 100% Export Oriented Unit, in para (g) of this Appendix. Therefore, it can be concluded, if after receipt of CT3 goods the same are not accounted to have been used as envisaged under Notification 123/81-C.E., the action for recovery of duty liability (on exemption availed at the stage of removal from factory of manufacturer) and subsequently for forfeiture of security, confiscation of goods etc. have to be initiated by the Officer Incharge of the Consignee factory. We therefore find no infirmity in the order of Commissioner (Appeals) having held 'supply of goods on CT-3 is in order and the liability of Asstt. Collector of Consignee to verify the eligibility'. The notifications in 1984 (15) E.L.T. 206 & 1999 (112) E.L.T. 511 were different. In view of the specific provisions of the procedures in this notification, the demand should have been made on the consignee by their proper officer.
4. In view of our finding, we reject the appeal.