Custom, Excise & Service Tax Tribunal
M/S. Siraga Aqua Farm & Exports Ltd vs Cc,Ce&St, Guntur on 2 February, 2015
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CIRCUIT BENCH AT HYDERABAD Division Bench Appeal No.C/1745, 1746/2011 Application No.C/Stay/1106, 1107/2011 (Arising out of Order-in-original No.35/2010-Cus. (de novo) (Commr) dt. 31/12/2010 passed by CC&CE, Guntur) For approval and signature: Honble Mr. Justice G. Raghuram, President Honble Mr. B.S.V. Murthy, 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 their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? M/s. Siraga Aqua Farm & Exports Ltd. Shri U. Narasimha Rao .Appellant Vs. CC,CE&ST, Guntur .Respondent
Appearance:
Shri K. Vijaya Kumar, Advocate for the appellant.
Shri I. Mariana, Authorised Representative for the respondent.
Coram:
Honble Mr. Justice G. Raghuram, President Honble Mr.B.S.V. Murthy, Member(Technical) Date of hearing :02/02/2015 Date of decision:02/02/2015 FINAL ORDER No. [Order per: B.S.V. MURTHY] After hearing both the sides for quite some time, we found that the matter has to be remanded once again to the Commissioner for fresh adjudication. Therefore, we waive the requirement of predeposit and take up the appeals for final decision.
2. The appellant is a 100% EOU engaged in aquaculture. They had procured indigenous goods for production of shrimps and also imported raw materials and capital goods. Taking a view that appellant had not fulfilled the obligation as per the notification and the sales made to other EOUs/ job work entrusted to other EOUs cannot be considered as exports, proceedings were initiated. This is second round of litigation. In the first round when the matter had come up before this Tribunal, this Tribunal vide Final Order Nos.851 & 852/2010 dt. 09/04/2010 had remanded the matter with the following observations, which are relevant and are reproduced below:-
4. On careful consideration of the entire case records and the Order-in-Original, we find that the demand of duty on shrimp seeds which were cleared to DTA has to be considered in the light of the benefit of Notification No.8/97-CE dt. 1.3.97 which was claimed by the assessee. The condition of the said notification is that if goods cleared to DTA are manufactured out of indigenous inputs, then Central Excise duty is payable, as per Central Excise Tariff. This submission, in our view, is not considered by the Adjudicating Authority. It is also seen from the records that the appellant had not appeared before the Adjudicating Authority despite innumerable opportunities. We are not happy with this situation. Since the issue involved in this case being demand of duty which needs a relook by lower authority on factual matrix, in the interest of justice, we hold that the impugned order needs to be set aside and the matter to be heard by the Adjudicating Authority after considering the representation, that may be made by the appellant before him when he is called for the personal hearing. The Adjudicating Authority will dispose off the matter as expeditiously as possible, within three months of the date of receipt of this order.
5. Learned counsel for the appellant is clearly directed that he should not seek any adjournment in the matter.
6. Without expressing any opinion on the merits of the case, we set aside the impugned order and remand the matter to the Adjudicating Authority to reconsider the issue afresh.
3. Heard both the sides. The learned counsel on behalf of the appellants submits that the Commissioner in the de novo proceedings has given findings only with regard to admissibility of Notification No.8/97-CE and held earlier adjudication order holds good on all other issues and needs no interference. After bringing out the facts in the final order of the Tribunal which remanded the matter, he submits that the original adjudicating authority could have recorded his findings on all the issues. He also submits that while making submissions before the Commissioner second time, the appellants had made submission to the effect that the unit had already fulfilled the export obligation as per the requirements and hence there is no violation of export conditions that warrants duty demand, interest or penalty. It was also submitted that the Development Commissioner, VEPZ had already certified this fact. He also submits that there was no import of raw materials at all prior to 2000 whereas there is an observation that appellants had imported goods from 1994-95 onwards which shows that there is no proper appreciation of facts.
4. The learned AR would submit that there is nothing wrong in the action taken by the Commissioner while undertaking de novo proceedings. He submits that the Tribunal remand order required him to examine the fulfillment of conditions in the Notification No.8/97 only and nothing else. He also submits that there is nothing wrong that the Commissioner taking a view that he does not have to go into reasons again since he agrees with the same.
5. We have considered the submissions made by both the sides. In this case, the appellants had procured indigenous raw materials from 1994-95 onwards and had imported raw materials (Artemia) from 2000 onwards. As regards indigenous goods, the learned counsel relied upon the decision of the Honble Supreme Court in the case of CCE, Visakhapatnam Vs. NCC Blue Water Products Ltd. [2010-TIOL-73-SC-CX]. It was submitted by him that this decision has not been considered on the ground that the Departments appeal is pending before the Honble Supreme Court. However it was submitted that the order was passed by the Commissioner on 31st December 2010 and the decision of the Honble Supreme Court had already been reported by that time. Moreover it is also noticed that the Commissioner did not get it verified whether appeal has been decided or not before passing the order. We find that the rejection of the stand taken by the appellants that the decision of the Honble Supreme Court is applicable to the facts of this case on the ground that the appeal has not been decided is not correct. After hearing both the sides, prima facie, we also find that the decision of the Honble Supreme Court is applicable to the facts of this case. In that case also, 100% EOU had cleared the goods to DTA and the Honble Supreme Court took the view that even if indigenous raw materials have been procured under Notification No.8/97, when the tariff rate itself is nil, the rate of duty applicable would be in terms of Section 3(1) of Central Excise Act, 1944 and it is not necessary to go to the proviso at all. In this case also, the Departments case is that the conditions under Notification No.8/97 have not been fulfilled and Development Commissioners permission was not obtained and procedures were not followed.
6. As regards imported raw materials, the claim of the appellants has been rejected on the ground that the request to remove the shrimps for processing to job workers and export the same from the job workers premises by the appellant had been rejected by the Additional Commissioner and therefore the clearances made to the job workers which were in turn exported cannot be considered as fulfillment of obligations cast on the appellant at all. We consider that this aspect needs much more detailed examination. The submissions made by the appellants that the Development Commissioner had considered the clearances made from the job workers premises for exports as exports and in such a situation what would be the correct legal position is required to be considered and has not been considered. Further it was also submitted during the course of hearing that exports were made in the name of the appellants only. A view has also been taken that the clearances to EOUs cannot be considered as exports which again is contrary to the provisions of law.
7. Moreover the basic assumption on which the Commissioner has proceeded which is that the Tribunal had directed him to examine applicability of Notification No.8/97 only itself is not correct as can be seen from the reproduced portion of the final order hereinabove. Moreover once an order is set aside, it is non est and further there is no indication in the Commissioners order that the submissions relating to the exports made and in respect of raw materials imported after 2000 have been dealt with in the earlier order. In such a situation, we consider that the Commissioner should consider the matter once again and therefore remand the matter with a request to reexamine all the matters afresh, considering all the submissions that will be made by the appellants and consider all the precedent decisions of various fora and come to a legally correct solution after applying law to the facts of the case. Therefore the impugned order is set aside and the matter is remanded to the original adjudicating authority. Needless to say that appellant shall be given reasonable opportunity. Appellants are also directed to ensure that full cooperation is extended and no unnecessary adjournments are sought in view of the fact that the matter is very old.
(Pronounced in the Court) ( G. RAGHURAM ) PRESIDENT Raja (B.S.V. MURTHY) MEMBER (TECHNICAL) 7