Custom, Excise & Service Tax Tribunal
Cce, Mysore vs M/S. Techno Rings on 28 August, 2012
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT BANGALORE
Bench Division Bench
Court I
Date of Hearing:28/08/2012
Date of decision:28/08/2012
Application No.E/Misc./244/2012
Appeal No.E/815/2011
(Arising out of Order-in-Appeal No.250/2010 dt. 31/12/2010
passed by CCE(Appeals), Mangalore)
For approval and signature:
Honble Mr. P.G. Chacko, Member(Judicial)
Honble Mr. M. Veeraiyan, Member(Technical)
1.
Whether Press Reporters 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 the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether their Lordship wish to see the fair copy of the Order?
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
Yes
CCE, Mysore
..Appellant(s)
Vs.
M/s. Techno Rings
..Respondent(s)
Appearance Ms. Sabrina Cano, Superintendent(AR) for the appellant.
Ms. Vijaya Prakash, Advocate for the respondent.
Coram:
Honble Mr. P.G. Chacko, Member(Judicial) Honble Mr. M. Veeraiyan, Member(Technical) FINAL ORDER No._______________________ [Order per: P.G. Chacko] This application filed by the respondent in the appeal filed by the Department seeks out-of-turn disposal of the appeal. On a perusal of the records and hearing both sides, we have found this case to be fit for summary disposal. Accordingly, after allowing the miscellaneous application, we take up the appeal itself for final disposal.
2. The respondent had applied on 15/09/2009 for inclusion of additional premises in the registration certificate issued in respect of Shed No.B-1, Industrial Estate, Sagar Road, Shimoga. That application sought inclusion of a new shed bearing No.N8/2 in the existing registration certificate. The respondent received a letter dt. 05/11/2009 of the Deputy Commissioner(Tech.), office of the Commissioner of Central Excise, Customs and Service Tax, Mysore, which read as follows:-
2. In this regard, I am directed to inform that on thorough examination, the Commissioner has rejected your request for grant of single registration in respect of your existing premises i.e. at Shed No.B-1, Industrial Estate, Sagar Road, Shimoga and new shed bearing No.N8/2 which are way apart from each other and do not satisfy the required condition as per para 3.2 of Chapter 2 of supplementary instructions of CBEC Central Excise Manual for considering case for single registration.
3. Aggrieved by the decision communicated through the above letter, the respondent preferred an appeal to the Commissioner(Appeals) under Section 35 of the Central Excise Act. The learned Commissioner(Appeals), after hearing the party and considering a report obtained from the Additional Commissioner(Tech.), allowed the party to make fresh application for the aforesaid purpose and even went to the extent of observing that, if such application was rejected by the Commissioner, an appropriate speaking order should be issued so as to avoid jurisdictional problem relating to filing the appeal. The appellate authority further observed that as the Commissioner had not passed any speaking order in that matter, the appellant could not have filed any appeal in the CESTAT. This observation was made in the context of overruling the jurisdictional objection raised by the Additional Commissioner(Tech.).
4. The present appeal of the Department is directed against the appellate Commissioners order. The learned Superintednent(AR) has reiterated the grounds of this appeal and has also referred to the relevant provisions of law viz. Section 6 of the Central Excise Act and Rule 9 of the Central Excise Rules, 2002. She has also referred to the relevant provisions contained in Chapter 2 of the CBECs Excise Manual of Supplementary Instructions, 2005. With reference to these provisions, the learned Superintendent(AR) has argued that the respondents application called for a speaking order of the Commissioner concerned in exercise of quasi-judicial power and that any such order should be appealable to the CESTAT. In other words, the learned Commissioner(Appeals) has no jurisdiction in the matter. We have heard the learned counsel for the respondent, who has made an endeavour to justify the view taken by the Commissioner(Appeals).
5. After giving careful consideration to the submissions, we have found great force in the submissions made by the learned Superintendent(AR). Indisputably, Section 6 of the Central Excise Act provides that any person who is engaged in the production or manufacture of any specified goods or in the wholesale purchase or sale or storage of any such goods shall get himself registered with the appropriate officer in such manner as may be prescribed. The manner of registration has been prescribed under Rule 9 of the Central Excise Rules, 2002. As per this rule, any person or class of persons who may not require registration may be specified by the Board by notification. Further, the rule provides that the registration under Section 6 shall be subject to such conditions, safeguards and procedures as may be prescribed by the Board by notification. In this context, the provisions of Chapter 2 of CBECs Excise Manual of Supplementary Instructions, 2005 become relevant. The subject of common registration in respect of two or more premises has been dealt with in para 3.2 of Chapter 2, which reads as follows:-
3.2. Separate registration is required in respect of separate premises except in cases where two or more premises are actually part of the same factory (where processes are interlinked), but are segregated by public road, canal or railway-line. The fact that the two premises are part of the same factory will be decided by the Commissioner of Central Excise based on factors, such as:
(1) Interlinked process product manufactured/produced in one premises are substantially used in other premises for manufacture of final products.
(2) Large number of raw materials are common and received/proposed to be received commonly for both/all the premises.
(3) Common electricity supplies.
(4) There is common labour/work force.
(5) Common administration/work management.
(6) Common sales tax registration and assessment.
(7) Common Income Tax assessment.
(8) Any other factor as may be indicative of inter-linkage of the manufacturing processes.
This is not an exhaustive list of indicators nor is each indicator necessary in each case. The Commissioner has to decide the issue case by case. It appears from the above instructions of the Board issued under Rule 9 ibid that the Commissioner is the proper officer to deal with an application for common registration and that he shall take into account all the relevant factors while dealing with such an application. Even the above list of relevant factors is not exhaustive, which implies that it is incumbent on the Commissioner to determine any other factor relevant to the application for registration. This would, in turn indicate the applicant requires to be heard so that he/they would get an opportunity to place before the Commissioner all those factors which according to him/them are relevant to the application for registration. However, as per the above instructions, the burden is on the Commissioner to decide ultimately the relevance of all the factors and then to reckon them in the context of dealing with the registration application. The instruction explicitly says that the Commissioner has to decide the issue case by case. This procedure has all the trappings of a quasi-judicial process and the outcome of such process would necessarily be a quasi-judicial order. We, therefore, have to reject the premise on which the learned Commissioner(Appeals) took the view that there was no quasi-judicial character for the Commissioners decision on the application for registration. Even if it is assumed for a moment that the procedure of considering of registration application is purely administrative as postulated by the learned Commissioner(Appeals), we shudder to think how the learned Commissioner(Appeals) can issue instructions/directions to a Commissioner of co-ordinate status.
6. Having found the process of consideration of a registration application under Rule 9 by the Commissioner concerned to be of quasi-judicial character, we have to hold that the decision communicated to the respondent in the letter dt. 05/11/2009 of the Deputy Commissioner(Tech.) is quasi-judicial in character. The decision communicated to the respondent was that of the Commissioner concerned and, therefore, it was not appealable to the Commissioner(Appeals). The objection raised by the Department in the present appeal is perfectly valid.
7. We set aside the impugned order and allow this appeal. The miscellaneous application also stands disposed of.
(Pronounced and dictated in open court) (M. VEERAIYAN) MEMBER (TECHNICAL) ( P.G. CHACKO ) MEMBER (JUDICIAL) Nr 7