Custom, Excise & Service Tax Tribunal
Cce, Jaipur-I vs M/S. Paras Fab International on 14 March, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. III
Excise Appeal No. 2888/2005-Ex[DB]
[Arising out of Order-In-Appeal No. 159(MPM)/CE/JPR-l/2005 dated 09.06.2005 passed by CCE, Jaipur-I]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
Honble Shri Rakesh Kumar, Technical Member
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
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Whether Their Lordships wish to see the fair copy of the Order?
Seen
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Whether Order is to be circulated to the Departmental authorities?
Yes
CCE, Jaipur-I Appellant
Vs.
M/s. Paras Fab International Respondents
Appearance:
Shri Pramod Kumar, JCDR for the Appellant None for the Respondent Coram: Honble Ms. Archana Wadhwa, Judicial Member Honble Shri Rakesh Kumar, Technical Member Date of Hearing: 26.02.2014 Date of Decision:14.03.2014 FINAL ORDER NO. 51122 /2014_ Per Ms. Archana Wadhwa:
Being aggrieved with the order passed by Commissioner (Appeals), revenue has filed the present appeal. We have heard learned JCDR Shri Pramod Kumar. Nobody appeared for the respondent.
2. Brief facts of the case are that the Appellants are a 100% EOU and engaged in the manufacture of Terry Towel falling under Chapter Heading No. 63.02 of the schedule to the Central Excise Tariff Act, 1985. During the period September, 2003 to Jan., 2004 Appellant availed benefit of the exemption of Notification No. 7/2003-CE dated 01.03.2003 on the DTA clearance and thus paid Central Excise duty @ 10% instead of 16% Advalorem (Tariff rate). Adjudicating authority vide impugned order demanded Central Excise duty amounting to Rs. 1850043/- under Section 11A of Central Excise Act, 1944 alongwith interest under Section 11AB of Central Excise Act, 1944 and imposed a penalty of Rs. 1,00,000/- under Rule 25 of Central Excise Rules, 2002 on the ground that Notification No. 7/2003-CE dated 01.03.2003 has been issued under Section 5A of Central Excise Act, 1944 therefore it was not applicable to 100% EOU. Aggrieved with this impugned order the Appellants filed appeal before Commissioner (Appeals).
3. Commissioner (Appeals) allowed the same by observing as under:
5. I have carefully gone through the case records as well as submission made in appeal memorandum and further submissions made by the appellants at the time of personal hearing. The issue is to be decided whether the Appellants were eligible to avail the benefit of exemption Notification No. 7/2003-CE dated 01.03.2003 issued under Section 5A of Central Excise Act, 1944. I find that CBEC has clarified, vide letter F. No. 305/113/94-FTT dated 19.02.1998 normally duty leviable would be read with notification for the time being in force. Even in absence of such words in the notification, the duty leviable would be effective rate of duty only. This view was also affirmed by Honble Tribunal in the case of Ratnagiri Textiles Ltd., V/s CCE Jaipur-II [2003 (161) ELT-975 (Tri. Del)] wherein it has been held that Rate of duty-Additional Duty of Customs clearances made by 100% export Oriented Unit to Domestic Tariff Area Rate of duty to be the effective rate of duty as fixed under exemption notification and not the tariff rate section 3(1) of Central Excise Act, 1944 circular No. 305/113/94-FTT, dated 19.02.98 and in the case of CCE, Jaipur V/s Maiden Trading Co. Pvt. Ltd. {2001 (132) ELT 431 (Tri.-Del)} wherein it has been held that Clearances to Domestic Tariff Area (DTA) to be taken as produced in India benefit of exemption under notification No. 5/98-CE dated 02.06.1998 and 5/99-CE dated 28.02.1999 available and no countervailing duty leviable on such goods. Therefore, respectfully following the ratio of above decisions I hold that Appellants are entitles for availing the benefit of exemption notification and duty should be levied at effective rate on the goods cleared in DTA and not at Tariff rate. The same issue was decided earlier vide Order-in-Appeal No. 53, 54-55/2005 dated 25.2.2005.
4. Revenue in their memo of appeal have raised the following grounds:-
Commissioner (Appeals) while allowing the appeal of the assessee has overlooked the fact that the Notification No. 7/2003-CE dated 01.03.2003 has been issued under Section 5A of the Central Excise Act, 1944 and the proviso to section 5A stipulated that unless specifically provided in such notification, no exemption therein shall apply to excisable goods which are produced or manufactured by a 100% EOU.
5. As is seen from the reproduced portion of Commissioner (Appeals) order that he has relied upon the Board Circular as also the decisions of the Tribunal. Revenue in their memo of appeal have nowhere contended that the said decisions are not applicable to the facts of the present case or same have been reversed by any higher appellant form. In terms of the Board clarification the goods manufactured by 100% EOU have to be treated as having been produced in India, in so far the same relates to DTA clearance and the effective rate of duty is applicable in respect of such goods. The Tribunal in the relied upon decisions has taken not of the said clarification by the Board and has laid down that the clearances by 100% export Oriented Units to Domestic Tariff Area would attract effective rate of duty fixed under exemption notification issued under section 5A of Central Excise Act 1944. As such, we find not reasons to take a different view. Accordingly, revenues appeal is rejected.
(Pronounce in the open Court on 14.03.2014) (Archana Wadhwa) Member (Judicial) Jyoti* ??
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