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Custom, Excise & Service Tax Tribunal

Neo Foods Pvt Ltd vs Bangalore-Ii on 18 November, 2024

                                                                     E/22672/2014




     CUSTOMS, EXCISE & SERVICE TAX APPELLATE
                    TRIBUNAL
                   BANGALORE
                   REGIONAL BENCH - COURT NO. 1

             Central Excise Appeal No. 22672 of 2014

     (Arising out of Order-in-Appeal No. 313/2014-CE dated 30.05.2014
          passed by the Commissioner of Central Excise (Appeal-I),
                                 Bangalore.)


M/s. Neo Foods Pvt. Ltd.,
Plot No. 107, 108, 121 & 122,                                  Appellant(s)
KIADB Industrial Area,
Antharasanahalli, 2nd phase ,
Tumkur.

                                  VERSUS
The Commissioner of Central
Excise Bangalore II
Commissionerate,                                            Respondent(s)

Queens Road, Bangalore - 560 001.

APPEARANCE:

None for the Appellant Mr. Neeraj Kumar, Superintendent (AR) for the Respondent CORAM: HON'BLE DR. D.M. MISRA, MEMBER (JUDICIAL) HON'BLE MRS R BHAGYA DEVI, MEMBER (TECHNICAL) Final Order No. 21621 /2024 DATE OF HEARING: 18.11.2024 DATE OF DECISION: 18.11.2024 PER : DR. D.M. MISRA None present for the appellant. Heard the learned Authorized Representative for the Revenue.

2. This is an appeal filed against Order-in-Appeal No. 313/2014-CE dated 30.05.2014 passed by the Commissioner of Central Excise (Appeal-I), Bangalore.

E/22672/2014

3. Briefly stated the facts of the case are that the appellant is an 100% EOU engaged in the manufacture of processed foods namely Gherkins falling under Chapter Heading 20011000 of Central Excise Tariff Act, 1985. During the course of special audit, it was observed that the appellant had received back 17 containers of canned cucumbers from their foreign customers due to improper labelling on the jars/cans and informed that after proper re-labelling, the same will be re-exported to other foreign customers. They had re-exported 11 containers but could not re-export balance 6 containers within 3 months which later was extended till 21.01.2010 by the Department. Later, they had re-exported 2 containers and failed to re-export the remaining 4 containers within the extended period of time, valued at Rs.24.00 lakhs. Consequently, a notice was issued to them demanding duty of Rs.2,96,640/- involved on the goods relating to the 4 containers with interest and penalty. On adjudication, the proceedings were dropped against the appellant. Aggrieved by the said order, Revenue filed an appeal before the learned Commissioner (Appeals), who allowed the Revenue's appeal. Hence, the assessee is in appeal.

4. In their grounds of appeal, the appellant had submitted that they have exported the total of 13 containers of canned cucumbers out of the 17 re-imported containers from the foreign buyer. It is submitted that the 4 containers which could not be exported, they requested the permission of the Department for destruction of the same goods which was allowed to them vide letter dated 30.04.2010 and 20.09.2012 by the Superintendent of Customs and Superintendent of Central Excise respectively, in pursuance to the permission granted by Cochin Special Economic Zone (CSEZ) vide letter dated 29.04.2010. He has submitted that in compliance with the conditions of the permissions, the Page 2 of 5 E/22672/2014 goods were destroyed in the presence of the Officer and they had discharged appropriated applicable duty on the packing material and scrap generated on destruction of the goods. He has submitted that therefore, the adjudicating authority taking note of the fact of payment of duty on the packing material and scrap also in accordance with the Chapter 6.15(b) of Foreign Trade Policy 2009-2014, dropped the proceedings against the appellant. The learned Commissioner (Appeals) has erroneously set aside the said order which was in contravention to the provisions of law; hence liable to be set aside.

5. The learned Authorized Representative for the Revenue has reiterated the findings of the learned Commissioner (Appeals).

6. We find that the short issue involved in the present appeal is whether duty is payable on the 4 containers of re-imported canned cucumbers initially exported are required to be paid on its destruction with the permission of the Department. On-going through the impugned order, we find that the learned Commissioner has nowhere referred to nor examined the fact of permission granted to the appellant for destruction of the goods contained in 4 containers which could not be re-exported but allowed to be destroyed in the presence of Officers of the Department and duty is required to be paid in respect of scrap and packing materials. The said letter is placed below:

E/22672/2014

7. In these circumstances, we do not find merit in the impugned order passed by the learned Commissioner (Appeals).

E/22672/2014 Consequently, the same is set aside and the order of the Original Authority is restored.

8. Appeal is allowed.

(Operative part of this Order was pronounced in Open Court on conclusion of the hearing.) (D.M. MISRA) MEMBER (JUDICIAL) (R BHAGYA DEVI) MEMBER (TECHNICAL) Gb/Raja...