Custom, Excise & Service Tax Tribunal
M/S Gujarat State Fertilizers & ... vs Commissioner, C.Ex. & S.Tax, ... on 8 July, 2016
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Appeal No.E/13924/2013 [Arising out of OIA-VAD-EXCUS-001-APP-441/13-14, dt.14/10/2013, passed by Commissioner, C.Ex. & S.Tax, Vadodara-I] M/s Gujarat State Fertilizers & Chemicals Ltd Appellant Vs Commissioner, C.Ex. & S.Tax, Vadodara-I Respondent
Represented by:
For Appellant: Shri Willingdon Christian, Advocate For Respondent: Shri S.N.Gohil, A.R. For approval and signature:
Honble Dr. D.M. Misra, Member (Judicial)
1. Whether Press Reporters may be allowed to see the No 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 their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE DR. D.M. MISRA, MEMBER (JUDICIAL) Date of Hearing/Decision:08.07.2016 Order No. A/10610 / 2016, dt.08.07.2016 Per: Dr. D.M. Misra This Appeal is filed against OIA-VAD-EXCUS-001-APP-441/13-14, dt.14/10/2013, passed by Commissioner, C.Ex. & S.Tax, Vadodara-I.
2. Briefly stated the facts of the case are that the Appellants are engaged in the manufacture of excisable goods falling under Chapter 27, 28, 31 & 39 of Central Excise Tariff Act, 1985. The Appellants, during the period April 2007 to March 2009 manufactured and cleared the excisable goods viz. Caprolactum (crystalline), Caprolactum (flakes) and Sulphuric Acid to their other units by determining the assessable value in terms of Rule 8 of Central Excise Valuation Rules, 2000. At the time of clearance, the Appellants adopted the CAS-4 data of previous year to arrive at the cost of production, and on receipt of the actual data, they re-determined the assessable value and paid the differential duty. However, they have not paid the interest on the delayed payment of differential duty. Show Cause cum demand notice was issued on 25.05.2012, for recovery of interest of Rs.1,33,704/- for the period April 2007 to March 2009. On adjudication, the demand was confirmed. Aggrieved by the said order, the Appellant preferred an appeal before the learned Commissioner (Appeals), who in turn, upheld the adjudication order and rejected the appeal. Hence, the present Appeal.
3. The learned Advocate Shri Willingdon Christian for the Appellant submitted that even though the differential duty was determined on recalculated assessable value and paid during the period 2007 to 2009, the demand for interest was issued to them in 2012. It is his contention that the demand is barred by limitation. In support, he has referred to the decision of Hon'ble Delhi High Court in the case of Hindustan Insecticides Ltd Vs CCE 2013 (297) ELT 332 (Del.), the decision of Hon'ble Gujarat High Court in the case of CCE Vadodara-II Vs Gujarat Narmada Fertilizers Co Ltd 2012 (285) ELT 336 (Guj) and the decision of this Tribunal in their own case i.e. Gujarat State Fertilizers & Chem. Ltd Vs CCE Vadodara-I 2013 (289) ELT 489 (Tri-Ahmd).
4. The learned Authorised Representative reiterates the findings of the learned Commissioner (Appeals).
5. Heard both sides and perused the records. It is not in dispute that the Appellant had paid the differential duty after re-calculation of the assessable value adopting the actual data relevant for the period during which goods were cleared. It is also not in dispute that even though the differential duty was paid, the Appellant had not discharged the interest on the differential duty. It is the contention of the Appellant now before this forum is that the demand for interest since issued in 2012, hence barred by limitation. The learned Advocate heavily relied upon the decision of Hon'ble Delhi High Court in the case of Hindustan Insecticides Ltd (supra) involving more or less on similar facts and circumstances. I find that the Hon'ble Delhi High Court referring the judgment of Hon'ble Gujarat High Court in the case of Gujarat Narmada Fertilizers Co Ltd (supra) recorded at Para 14 as follows:-
14.?A reading of the aforesaid paragraph would show that in the said case notice of payment for interest was issued after four years and it was held that it was beyond a reasonable period and the department could recover the amount from the Assessing Officer, who had not taken steps for four years and not from the respondent-assessee therein. The finding of the Supreme Court on interpreting the applicable Act was that no limitation period was prescribed, therefore, proceedings for recovery could be initiated within a reasonable time. The ratio in the said case is distinguishable for the reason that payment of interest is to be made under Section 11A and, therefore, the period of limitation prescribed therein would equally apply as has been held by the Delhi High Court in the case of Kwality Ice Cream Company (supra), Punjab and Haryana High Court in the case of M/s. VAE VKN Industries Private Limited (supra) and Gujarat High Court in Gujarat Narmada Fertilizers Company Limited (supra). These judgments have relied upon the decision of the Supreme Court approving the view of the Tribunal in TVS Whirlpool Limited (supra) wherein pari materia provisions of the Customs Act were considered. This being a distinguishing feature, we feel that the appellant is entitled to succeed in the present appeals. The question of law is accordingly answered in affirmative, i.e., in favour of the appellant and against the respondent-Revenue.
5. In view of the above precedent, I do not find any merit in the impugned order. Consequently, the same is set aside and the appeal is allowed with consequential relief, if any, as per law.
(Dictated and pronounced in the open court) (Dr. D.M. Misra) Member (Judicial) Cbb 4