Custom, Excise & Service Tax Tribunal
) Space Makers Roofing System (I) Pvt. ... vs Commissioner Of Central Excise, ... on 19 May, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal Nos.E/S/156/09/ & E/223/09
E/S/155/09 & E/222/09
[Arising out of Order-in-Appeal No.19&20/2009-CE dated 12.1.2009 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Coimbatore]
For approval and signature:
Honble Ms.JYOTI BALASUNDARAM, Vice-President
Honble Mr. P.KARTHIKEYAN, 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? :
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 the Members wish to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
1) Space Makers Roofing System (I) Pvt. Ltd.
2) K.Parthiban
Appellant/s
Versus
Commissioner of Central Excise, Coimbatore
Respondent/s
Appearance :
Shri G.Natarajan, Advocate Shri V.V.Hariharan, JCDR For the Appellant/s For the Respondent/s CORAM:
Honble Ms.Jyoti Balasundaram, Vice-President Honble Mr. P. Karthikeyan, Member (Technical) Date of hearing : 19.5.2009 Date of decision : 19.5.2009 Final Order No.____________ Per Jyoti Balasundaram After hearing both sides for some time on the applications for waiver of predeposit of Rs.28,48,071/- and penalty of equal amount, and penalty of Rs.1 lakh on the Director of M/s.Govindaraja Mudaliar Sons (P) Ltd., we found it possible to decide the appeals themselves at this stage as the prayer of the appellants is for remand for the reason that the authorities below have not considered all the submissions made by them, and hence proceed to decide the appeals after waiving the predeposit.
2. The appellants herein are manufacturers of articles of polyurethane foam and profiled sheets of various materials. They had claimed classification of polyurethane foam products under Chapter 94.06 or CET subheading 7308.90, while the authorities below held that such products fell for classification under Chapter Heading 39.21 and a demand of Rs.3,10,373/- was confirmed on clearances of these products during the years 2002-03 and 2003-04 under the proviso to Section 11A of the Central Excise Act, 1944, on the basis of above classification. Demand of Rs.25,37,698/- has been confirmed on clearances of profiled sheets and pre-engineered building materials during the period 2002-03 and 2003-04, under the proviso to Section 11A of the Act this demand arises as a result of (a) denial of benefit of job work Notification No.214/86-CE dt. 25.3.86 and (b) denial of benefit of SSI exemption by including the value of job work clearances in the aggregate value of clearances.
3. As regards the demand on polyurethane foam products, we find that although the appellants have canvassed classification under Chapter 94.06 as pre-fabricated buildings and alternatively, Chapter 73.08 as parts of steel structures, a finding has been recorded only on the claim under Chapter 94.06 by rejecting the same, and no finding has been recorded on the alternate plea that the goods may be held to fall for classification under Chapter Heading 73.08. The job work benefit has been denied on the ground that one of the persons for whom the appellants carried out job work namely M/s.Govindaraja Mudaliar & Sons Pvt. Ltd. had initially stated that after return of the goods from the appellants who did job work for them, they cleared the same without payment of duty and, therefore, without availing credit and although subsequently the appellants at the stage of reply of show-cause notice, have tried to show that some of the goods on which they had carried out job work were cleared by Govindaraja Mudaliar & Sons Pvt. Ltd. on payment of duty as evidenced from the job work challan and invoices issued by its General Manager to its customers (one such example is clearances to M/s.G.K.Roofings), this contention which was supported by documentary evidence, has been rejected by the authorities below on the ground that it is an after-thought. The plea of the appellants that the value has been wrongly arrived at has been rejected by holding that the manufacturers profit is required to be included in the assessable value however, we see force in the contention of the appellants that since they are the manufacturer of the goods in question, addition of the profit of Govindaraja Mudaliar & Sons (raw material supplier) is not legally permissible in the light of the apex courts judgment in Ujagar Prints etc. Vs Union of India & Others, 1989 (39) ELT 493 (SC).
4. All these issues require to be considered afresh by the adjudicating authority. We, therefore, set aside the impugned order and remit the case to the Additional Commissioner for de novo adjudication after extending reasonable opportunity to the assessees of being heard in their defence.
5. The appeals are allowed by remand.
(Dictated and pronounced in open court)
(P.KARTHIKEYAN) (JYOTI BALASUNDARAM)
MEMBER (T) VICE-PRESIDENT
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