Custom, Excise & Service Tax Tribunal
M/S Bharat Foods Co Operative Ltd vs Commissioner Of Central Excise on 19 July, 2016
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad ~~~~~ Appeal No : E/687/2008 (Arising out of OIA-65-2008-COMMR-ARAJ dtd 18/03/2008 passed by Commissioner (Appeals) of Central Excise, CUSTOMS (Adjudication)-KUTCH (GANDHIDHAM) M/s Bharat Foods Co Operative Ltd : Appellant (s) Versus Commissioner of Central Excise, CUSTOMS (Adjudication)-KUTCH (GANDHIDHAM): Respondent (s)
Represented by:
For Appellant (s) : Sh. H. D. Dave, Advocate For Respondent (s): Sh. A. Misra, Authorised Representative For approval and signature:
Dr. D. M. Misra, Honble Member (Judicial) Mr. P. M. Saleem, Honble 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?
No
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 Lordships wish to see the fair copy of the order?
Seen
4. Whether order is to be circulated to the Departmental authorities?
Yes CORAM:
Dr. D. M. Misra, Honble Member (Judicial) Mr. P. M. Saleem, Honble Member (Technical) Date of Hearing/Decision: 19.07.2016 Order No. A/10619 / 2016 dtd. 19.07.2016 Per: Dr. D. M. Misra Heard both sides.
2. This is an appeal filed against order-in-appeal No. 65/2008/COMMR(A)/RAJ dated 19.03.2008 passed by Commissioner (Appeals), Central Excise, Rajkot.
3. Briefly stated, facts of the case are that the appellant are engaged in the manufacture of Refined Palm Oil (RPO), Refined Edible Oils, Vanaspati Products and Fatty Acid falling under Chapter 15 of CETA, 1985. The appellant had been availing benefit of area based exemption Notification No.39/2001-CE dated 31.07.2001 on fulfilment of the conditions laid down therein. They have filed refund claims on 21.08.2007 amounting to Rs. 16,24,894/- for all their manufactured products. The original authority had sanctioned the claim for Rs. 15, 51,931/- but rejected Rs.72,963/- on the ground that the product Acid Oil was not manufactured before 31.12.2005, hence, not eligible to the benefit of said exemption Notification. Aggrieved by the said order, the appellant preferred an appeal before Ld. Commissioner (Appeals), who in turn, rejected their appeal. Hence, the present appeal.
4. Ld. Advocate for the appellants submits that there is no dispute on the fact that the appellant had completed installation of plant and machinery and commenced commercial production before 31.12.2005. They had also intimated the department the list of products including Acid Oil to be manufactured from the said installed plant and machineries vide their letter dated 26.11.2005. It is his contention that all the conditions laid down under the said notification had been fulfilled by them inasmuch as the installation of plant and machinery had been copleted prior to 31.12.2005, necessary certificates of investment had been issued by committee and also they commenced commercial production prior to 31.12.2005 of almost all products except Acid Oil. It is his contention that even if one of the product i.e Acid Oil is manufactured after 31.12.2005, the benefit of the said notification cannot be denied to them. In support, he has referred to the following decisions of this Tribunal.
(i) Commissioner of Central Excise, Rakot vs. Meena Agency Pvt. Ltd. 2010 (249) E.L.T. 114 (Tri.-Ahmd.)
(ii) Sunshine Oleochem Pvt. Ltd. Vs. Commissioner of Central Excise, Rajkot 2009 (240) E.L.T. (Tri.-Ahmd.)
(iii) Commissioner of Central Excise, Rajkot vs. Indian Steel Corporation Ltd. 2009 (233) E.L.T. 409 (Tri.-Ahmd.)
(iv) Commissioner of Central Excise, Rajkot vs. Value Packaging 2009 (233) E.L.T. 84 (Tri.-Ahmd.)
5. He has further submitted that in the CBEC Circular dated 10.07.2008, it has been clarified that by using the same plant and machinery, installed prior to the cut off date, if any new product manufactured after cut off date, the benefit of the notification cannot be denied to the said new product. He has submitted that before the Ld. Commissioner (Appeals), they have adduced sufficient evidences including bills of material used for fabrication of machinery required for manufacture Acid Oil etc., to show that no new machineries were added after 31.12.2005, the cut off date. It is his contention that the Ld. Commissioner (Appeals), ignored these evidences and erroneously under surmises has held that the Acid Oil, which had been manufactured after the cut off date, and since the appellant has failed to submit sufficient evidences that they had manufactured the Acid Oil out of the installed plant and machinery prior to the cut off date, therefore, they are not eligible to the benefit of the said notification in relation to the product Acid Oil.
6. Ld. AR for the Revenue reiterated the findings of the Ld. Commissioner (Appeals).
7. We have considered the rival submissions and perused the records. The short point needs to be addressed is as to whether the appellant are eligible to the benefit of Notification No. 39/2001-CE dated 31.07.2001, in respect of Acid Oil manufactured after the cut off date, that is, 31.12.2005. Initially, while rejecting the refund claim on Acid Oil, the adjudicating authority observed that the same was manufactured after the cut off date, hence, not eligible. The Ld. Commissioner (Appeals), however, had observed that the appellant had failed to submit evidences that the Acid Oil was manufactured out of the same plant and machinery that were installed in their premises before the cut off date. We find that with regard to the objection that Acid Oil being manufactured after the cut off date, hence not eligible to the benefit of notification, is no more res-integra, in view of the decisions of this Tribunal in the aforesaid cases and also as clarified in the CBEC Circular dated 10.07.2008. The only fact that needs to be examined for extending the benefit notification No. 39/2001-CE dated 31.07.2001, to the product Acid Oil is, whether it same was manufactured using the same plant and machinery installed prior to 31.12.2005. From the record, we find that a categorical submission has been advanced by the appellant before the Ld. Commissioner (Appeals), and evidences of installation of plant and machinery prior to 31.12.2005, capable to manufacture Acid Oil were produced and also before us a categorical submission has been advanced by the Ld. Advocate for the appellant that the Acid Oil had been manufactured, without addition of any plant and machinery to the existing line of manufacture of goods, after the cut off date 31.12.2005. The observation of the Ld. Commissioner(Appeals), on the other hand rests on conjectures and surmises. In these circumstances, we are of the opinion that the appellant had since complied with all the conditions of the notification in respect of the product Acid Oil, hence, eligible to the benefit of Notification No. 39/2001-CE dated 31.07.2001
8. In the result, the impugned order is set-aside and the appeal is allowed with consequential relief, if any, as per law.
(Operative part of the order pronounced in the Court)
(P. M. Saleem) (D. M. Misra)
Member (Technical) Member (Judicial)
G.Y.
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