Custom, Excise & Service Tax Tribunal
M/S Priya Dyers vs Commissioners Of Central Excise on 8 September, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad -ooOoo- Appeal No. : E/2754,2755/2004 Appln No: E/others/12341,12343/2014 [ Arising out of OIO-13/COMMR/2004 dtd 30/7/2004 Passed by Commissioners of Central Excise, Customs and Service Tax-RAJKOT ] 1. M/s Priya Dyers - Appellant (s) 2. M/s Jay Prabha Textile Printery Vs. Commissioners of Central Excise, Customs and Service Tax-RAJKOT - Respondent (s)
Represented by:
Appellant (s) : Shri P V Seth, Advocate Respondent (s) : Ms Bharati Chauhan, Authorised Representative Shri J Nagori, Authorised Representative For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble Member (Technical) 1 Whether Press Reporter 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes CORAM :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble Member (Technical) Date of Hearing / Decision : 8/9/2015 ORDER No. A/11382-11383 / 2015 dtd 8/9/2015 Per : Mr. P.K.Das;
The appellant was engaged in the processing of dyeing of woven fabrics with the aid of power. A show Cause Notice dtd 22.3.2003 was issued proposing demand of duty as the appellant was engaged in dying various types of cotton fabrics. The appellant claimed benefit of the exemption Notification No 6/2000-CE dtd 1.3.2000 (Entry Sr. 103) The Adjudicating authority confirmed the demand of duty alongwith interest and imposed penalties.
2. After hearing both sides and on perusal of the record, we reproduce the relevant portion of Sr No 103 as appended to the Table of the Notification No 6/2000-CE dtd 1.3.2000 hereunder:
Sr No Chapter or Heading or sub-heading Description of Goods 103 52.07 52.08 0r 52.09 Cotton fabrics processed without the aid of power or steam Explanation:
For the purpose of this exemption, cotton fabrics subjected to any one or more of the following processes with the aid of power, shall be deemed to have been processed without aid of power or steam, namely:
(a) Lifting to overhead tanks or emptying in underground tanks or handling of chemical such as acids, chlorine, caustic sods,
(b) By mixing and stirring of dyes, kerosene, caustic soda, gum paste and emulsion etc, by stirrer, or
(c) Colour fixation by passing steam or applying sodium silicate.
3. The Learned Advocate on behalf of the appellant made the submission in two counts. Firstly, the process of colour fixation by applying Sodium Silicate undertaken by the appellant is covered within the exemption Notification. The Learned Advocate also submitted the certificate dtd 19.8.2015 issued by Ahmedabad Textile Industrys Research Association (ATIRA). As regards the other issue, he fairly submits that, the goods in question are not marketable and therefore, it is not excisable. They have filed Miscellaneous application for additional evidence.
4. On the Other hand, the Learned Authorised Representative submits that the certificate issued by the ATIRA would strengthen the Depts case. He further submits that the Miscellaneous application filed by the applicant for additional evidence should not be entertained at this stage. In addition to that the Learned Authorised Representative placed the copy of the letter dtd 20.1.2015 addressed to the Commissioner (AR), CESTAT, issued by the Additional Commissioner (RRA), Central Excise, HQ, Rajkot. In that letter, it is stated that on the basis of market survey conducted by JRS, it was found that similar product was also manufactured and cleared by M/s Royal Impex and M/s Nisan Exports. The self attested copies of the invoices of both the units were enclosed with the said letter. Hence, the goods are marketable. The Learned Authorised Representative submits that there is no reason for remand the matter. He relied upon the decision of Honble Supreme Court in case of M/s Sanghvi Reconditioners Pvt Ltd Vs UOI [2010.251. ELT.3(SC)] and M/s Jain Exports Pvt Ltd vs UOI [1993.66.ELT.537(SC)].
5. On the other hand, the Learned Advocate relied upon the following decisions on marketability, as under :
a) Commissioner of Income Tax Vs M/s Mitesh Impex 2014.TIOL.480.HC.AHM.IT, and
b) Sonam Clock Pvt Ltd Vs CCE, Rajkot 2012.278.ELT.263 (Tri. Ahmd.)
6. We find that the dispute relates to whether process undertaken by the appellant to colour fixation by applying Sodium Silicate would cover within the purview of the exemption notification and the goods are marketable. The appellant had argued at length. The Authorised Representative for the Revenue also reiterates the findings of the Adjudicating Authority. It is submitted that the process would not mere colour fixation and it would be dyeing of the fabric. But, the certificate issued by the ATIRA, would supported the case of appellant. We have also noticed that the appellant disputed marketability of the product. The Learned Authorised Representative for the Revenue also countered the application for additional evidences filed the appellant by producing the evidences in the nature of invoices of the other units. Hence, in our considered view, the Adjudicating authority should examine the matter on merit as well as marketability on the basis of the evidences produced both sides.
7. The Learned Authorised Representative relied upon the decision of the Honble Supreme Court in the case of M/s Sanghvi Reconditioners Pvt Ltd (supra). The said case relates to claim of commission. The case of M/s Jain Exports Pvt Ltd (supra), the appellant placed the additional evidence before the Honble Supreme Court. In the present case, the appellant filed the application for additional evidence and the Learned Authorised Representative also countered application by producing other evidences and therefore, the case laws relied upon are not applicable in the present case.
8. In view of the above discussions, we set aside the impugned order and the matter is remanded to the Adjudicating authority to decide afresh after considering the evidences and case laws in accordance with the law. Needless to say that the Adjudicating authority shall give proper opportunity of hearing before taking decision. As the matter is old one, the Learned Advocate undertakes to co-operate with the Adjudicating authority during the denovo proceedings. We request the Adjudicating Authority to decide the matter as early as possible. Both the appeals are allowed by way of remand. The applications filed by the applicant are disposed of. We do not express any opinion on merit of the case.
(Dictated and pronounced in the Court)
(P.M. Saleem) (P.K. Das)
Member (Technical) Member (Judicial)
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