Custom, Excise & Service Tax Tribunal
M/S. Padmavati Ply Pvt. Ltd vs Cce, C & St, Hyderabad-I on 2 December, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
REGIONAL BENCH AT HYDERABAD
Bench SMB
Court I
Appeal No. E/22747/2014
(Arising out of Order-in-Appeal No. 37/2014-15 (H-IV) CE dt. 05.06.2014 passed by CC, CE & ST (Appeals-II), Hyderabad)
For approval and signature:
Honble Ms. Sulekha Beevi, C.S., Member(Judicial)
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 their Lordship wish to see the fair copy of the Order?
4.
Whether Order is to be circulated to the Departmental authorities?
M/s. Padmavati Ply Pvt. Ltd.,
..Appellant(s)
Vs.
CCE, C & ST, Hyderabad-I
..Respondent(s)
Appearance Shri. Muralidhar, Advocate for the Appellant.
Shri. Guna Ranjan, Superintendent (AR) for the Respondent.
Coram:
Honble Ms. Sulekha Beevi, C.S., Member (Judicial) Date of hearing: 02/12/2016 Date of decision: 02/12/2016 FINAL ORDER No._______________________ [Order per: Sulekha Beevi, C.S.] The appellants are manufacturers of Plain Particle Board and laminated MDF Board, falling under CET 44101110, 44111200. They are availing facility of CENVAT credit for the inputs, input services and capital goods used in the manufacture of the above dutiable items. They are not manufacturing any other exempted goods in their factory premises.
2. In the course of manufacture of the above items, saw dust and sand dust emerges as waste arising in the manufacturing process and this is an admitted fact in the Show Cause Notice itself. This is cleared by the appellants without payment of excise duty.
3. The Department issued Show Cause Notice alleging that Saw Dust is classifiable under CETSH No. 44013000 on which the excise duty has been exempted under Notification No. 3/2005 CE dated 24.02.2005. Therefore, the clearance of saw dust without payment of excise duty amounted to taking of CENVAT credit both for dutiable goods and exempted goods. Accordingly, in terms of Rule 6(3) amount of 10% / 5% / 6% is required to be paid on the value of the exempted goods.
4. The Department relied on the amendment to Section 2 (d) of CEA 1944 and Board Circular No. 904/24/2009 CX dated 28.10.2009, because of which saw dust and sand dust would be Excisable goods but for the exemption granted under Notification No. 3/2005 CE dated 24.02.2005.
5. The Show Cause Notice was issued by invoking the extended period. After due process of Adjudication, the entire demand was confirmed along with interest and penalty under Section 11AC, was also imposed.
6. The appeal filed before Commissioner (Appeals) was rejected and the appellants are now before the Tribunal.
7. On behalf of the appellant, the Ld. Counsel R. Muralidhar submitted that the issue is no more res integra. The issue stands decided by the judgments passed by Tribunal in the case of Mas Furniture Vs. CCE Mysore [ 2016-TIOL-2992-CESTAT-BANG ] and Panel Board And Laminates Ltd., (Formerly M/s. Ballarshah Plywood) Vs. CCE Nagpur [ 2015-TIOL-2525-CESTAT-MUM ]. The Ld. Counsel also pointed out that the demand has been raised on the basis of Circular No. 904/24/2009 dated 28.10.2009. That this Circular has been quashed by the Honorable High Court of Alhabad in the case of Balrampur Chini Mills Ltd., Vs. UOI [ 2014 (300) ELT 372 (All.) ]. In view thereof, following the ratio laid in above judgments relied upon by appellant I hold, that the demand is unsustainable. The impugned order is set aside. The appeal is allowed with consequential reliefs, if any.
(Pronounced & dictated in open court) SULEKHA BEEVI C.S. MEMBER (JUDICIAL) Lakshmi.
4