Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs Btm Beverages Pvt. Ltd on 16 February, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/208/2007-DB [Arising out of Order-in-Appeal No. 36/2007 dated 24/01/2007 passed by the Commissioner of Central Excise, Mangalore] For approval and signature: HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER 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? 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 Commissioner of Central Excise, Customs and Service Tax Belgaum No. 71, Club Road, Central Excise Building, Belgaum 590 001 Karnataka Appellant(s) Versus BTM Beverages Pvt. Ltd. Survey No.124/1B, Anchatgeri Village, Karwar Road, Hubli Respondent(s)
Appearance:
Shri Mohd. Yusuf, DR For the Appellant None For the Respondent Date of Hearing: 16/02/2016 Date of Decision: 16/02/2016 CORAM:
HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER Final Order No. 20259 / 2016 Per: ARCHANA WADHWA Being aggrieved with the order passed by Commissioner (Appeals), Revenue has filed the present appeal. We have heard Shri Mohd. Yusuf, DR appearing for the Revenue. Nobody appeared for the respondent.
2. The dispute in the present appeal relates to applicability of small scale exemption Notification No. 8/2003-CE dated 01.03.2003. The appellants were using the brand name of another person and the lower authorities sought to deny the benefit of the notification in question. However during adjudication appellant took a stand that they are not hit by the bar of the notification inasmuch as their unit is located in rural area in the village of Anchatgeri.
3. However the original adjudicating authority confirmed the demand on the ground that the village Anchatgeri, where the assessees factory is situated has been notified by the Government of Karnataka, Housing and Urban Development vide their Notification dated 04.07.1988, for amalgamation of local planning area of cities of Hubli and Dharwad. From the said notification, the original adjudicating authority concluded that the appellants factory has now covered by the urban area, thus not entitled to SSI exemption. As such after granting the benefit of limitation, he confirmed the demand along with interest and imposition of penalty. On appeal Commissioner (Appeals) observed as under:
I find that the Karnataka Government Notification relied on by the original authority does not specifically change the category of Anchatgeri village from a rural to an urban area. This village has merely been included in the amalgamate local planning area for city of Hubli and Dharwad. I therefore find that the relied on Notification does not change village Anchatgeri from rural area to urban area and is therefore inadequate for denying SSI exemption to the appellant in terms of definition of rural area in the Notification. In fact the clarificatory correspondence referred to by the original authority refers to this village as area reserved for agriculture. I therefore hold that relied upon Notification does not conclusively changes it into urban area. I also place reliance on Honble Tribunals decision in the case of Malabar Regional Co-operative Milk Products Union Limited as reported in 2006 (201) ELT 21 (Tri.-Bang.) for coming to this conclusion.
The appellants have produced Tahasildars certificate dated 15.04.2005 in support of their claim. Tahasildar is a custodian of land revenue record, and there being no express and clear change of status of Anchatgeri from rural to urban in the above referred Notification, a certificate certifying the rural status of the village should be accepted.
4. The Revenue in their memo of appeal has referred to the Explanation 5(H) from the Notification No. 8/2003 dated 01.03.2003 which defines rural area as the area comprised in a village as defined in the land revenue records, excluding the area under any municipal committee, municipal corporation, town area committee and any area which may be notified as an urban area by the Central Government. Admittedly the village in question has not been notified as an urban area either by the Central Government or a State Government. The Revenue is relying on only upon an amalgamation scheme of local planning area for the city of Hubli and Dharwad where the village in question may be included.
5. Inasmuch as the said explanation defines rural area as a village defined in the land revenue records, for which purpose a certificate stands issued by the Tahsildar of the village, holding the said area to be a rural area and which certificate does not stand challenged by the Revenue, we find no justifiable reasons to ignore the said certificate of the Tahsildar. It may not be out of place to mention here that in terms of the definition as contained in the above referred explanation, the area comprised in a village and as defined in the land revenue records is the rural area. Land revenue records are maintained by the Tahsildar, who is the proper authority to give the certificate. We cannot step into shoes of the local Tahsildar to find out as to whether the certificate given by him is correct or not. Otherwise also the Revenue is not assailing the said certificate as incorrect, we cannot ignore the certificate in question. In our view the same stands rightly taken into consideration by the Commissioner. No infirmity can be found in the order of the appellate authority.
6. In view of the above we reject the appeal filed by the Revenue.
(Order pronounced and dictated in open court) (ASHOK K. ARYA) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER iss