Custom, Excise & Service Tax Tribunal
Cce, Madurai vs M/S. India Cements Ltd on 11 May, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
E/1359/2004 and E/CO/47/2005
(Arising out of Order-in-Appeal No. 145/2004 dated 26.8.2004 passed by the Commissioner of Central Excise (Appeals), Tirunelveli)
For approval and signature:
Honble Ms. Jyoti Balasundaram, Vice President
Honble Dr. Chittaranjan Satapathy, 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 the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
CCE, Madurai Appellant
Vs.
M/s. India Cements Ltd. Respondent
Appearance Shri T.H. Rao, SDR, for the Appellant Shri S. Muthuvenkataraman, Advocate for the Respondent CORAM Honble Ms. Jyoti Balasundaram, Vice-President Honble Dr. Chittaranjan Satapathy, Technical Member Date of Hearing: 11.05.2011 Date of Decision: 11.05.2011 Final Order No. ____________ Per Jyoti Balasundaram The Revenue is in appeal against the order of the Commissioner of Central Excise (Appeals) who has set aside the demand of 8% of the value of limestone sold by the assessees who are manufacturers of cement during the period October 1997 to March 2002 and also imposed penalty the lower appellate authority has accepted the contention of the assessees that the requirement of payment of an amount equal to 10% of the value of limestone in terms of Rule 57CC of the Central Excise Rules, 1994 / Rule 57AD of Central Excise (Second Amendment) Rules, 2000 and Rule 6 of the CENVAT Credit Rules, 2002 was not applicable to the goods in question as what was sold was not limestone but mines waste / mineral reject as the magnesium oxide content in the goods was in the range of 9% to 16% while the maximum acceptable percentage of magnesium oxide, as per the Indian Bureau of Mines was only 4%.
2. We have heard both sides. The finding based upon the clarification of the Indian Bureau of Mines remains unchallenged by the Revenue and the ground in the appeal is only that the goods in question on which demand was raised was limestone. Further, in the light of the clarification of the Indian Bureau of Mines and the permission granted by the Industries Department, Govt. of Tamilnadu for disposing of the goods in question to needy industries for making coloured gems, lime powder and fertilizer industry, we accept the finding of the lower appellate authority that what was sold by the assessees was only waste or residue and not limestone and therefore the provisions of rules invoked in support of the demand are not attracted.
3. In the result, we uphold the impugned order and reject the appeal filed by the Department. The cross-objection filed by the assessees is only in the nature of comments upon/reply to the Revenues appeal and it is disposed of accordingly.
(Dictated and pronounced in open court)
(Dr. Chittaranjan Satapathy) (Jyoti Balasundaram)
Technical Member Vice President
Rex
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Appeal No.E/1359/2004