Custom, Excise & Service Tax Tribunal
M/S.Sri Sakthi Sago Factory vs Commissioner Of Central Excise, Salem on 16 June, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No.E/747/2004
[Arising out of Order-in-Appeal No.180/2004-CE [SLM] dated 24.03.2004 passed by the Commissioner of Central Excise (Appeals), Salem]
For approval and signature:
Honble Smt. JYOTI BALASUNDARAM, Vice-President
Honble DR. CHITTARANJAN SATAPATHY, 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
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?
M/s.Sri Sakthi Sago Factory
Appellants
Versus
Commissioner of Central Excise, Salem
Respondent
Appearance :
Shri M. Karthikeyan, Cons.
Shri C. Dhanasekaran, SDR For the Appellants For the Respondent CORAM:
Honble Smt. Jyoti Balasundaram, Vice-President Honble Dr. Chittaranjan Satapathy, Technical Member Date of hearing : 16.06.2010 Date of decision : 16.06.2010 Final Order No.____________ Per Jyoti Balasundaram
In this case, out of total demand of Rs.6,46,600/-, Rs.2,44,277/- is on dry starch which is not contested by the assessees. As regards the balance demand on wet starch the learned counsel for the appellants relies upon the decision of the Tribunal in Shri Varalakshmi Co. Vs Commissioner of Central Excise, Salem [2009 (235) E.L.T.155 (Tri.-Del.)] holding that wet starch is not liable to levy of excise duty. There is no evidence on record that wet starch comes into existence during the process of manufacture of sago. He also relies upon the decision of the apex court in Collector of Central Excise, New Delhi Vs Universal Electrical Industries [2003 (153) E.L.T.266 (S.C.)] to support his contention that the appeal can be disposed of by holding that it is not necessary that sago itself should be exempt under the SSI Notification No.175/86 and since sago attracts nil rate of duty under tariff itself, the ceiling limit of clearances cannot be held to have been exceeded by the assessees.
2. We find that the Tribunals order on manufacture and the apex courts judgement on Notification No.175/86 cited supra were not made available before the authorities below. These two decisions have a vital bearing on the demand and penalty in the present case. We, therefore, set aside the impugned order and remit the case to the adjudicating authority for fresh decision in the light of the above judgements. He shall pass fresh orders after extending a reasonable opportunity to the assessees of being heard in their defence.
The appeal is thus allowed by way of remand.
(Dictated and pronounced in open court)
(DR. CHITTARANJAN SATAPATHY) (JYOTI BALASUNDARAM)
TECHNICAL MEMBER VICE-PRESIDENT
ksr
17-06-2010
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