Custom, Excise & Service Tax Tribunal
Reliance Industries Ltd vs Commissioner Of Central Excise, Mumbai ... on 1 December, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Application No. EMA (Ors)/1789/11 & Appeal No. E/3981/03 (Arising out of Order-in-Appeal No. RJB/M.III/359/2003 dated 05.08.2003 passed by Commissioner of Central Excise (Appeals), Mumbai III.) For approval and signature: Honble Mr. S.S. Kang, Vice President Honble Mr. Sahab Singh, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Reliance Industries Ltd Appellant (Represented by: Ms. Shilpa Balani, Advocate with Mr. Vishal Agarwal, Advocate) Vs Commissioner of Central Excise, Mumbai III Respondent (Represented by: Mr. V.K. Agrawal, Additional Commissioner (A.R)) CORAM:
Honble Mr.S.S. Kang, Vice President Honble Mr. Sahab Singh, Member (Technical) Date of Hearing : 01.12.2011 Date of Decision: 01.12.2011 ORDER NO..
Per: S.S. Kang
1. Heard both sides.
2. The applicants filed this miscellaneous application seeking additional grounds. After hearing both sides, the application is allowed.
3. The appellants filed the present appeal against the impugned order whereby the demand is confirmed on the ground that the appellants are suppressing the value of the goods cleared to their customers who are having advance licences which were endorsed in the name of the appellants.
4. The appellants rely on the decision of the Tribunal in their own case (in appeal E/476/06) whereby the Tribunal vide final Order dated 14.7.2006 remanded the matter to the adjudicating authority to decide afresh in view of the pleas raised which were not taken into consideration by the adjudicating authority that the goods in question had been supplied to customers holding advance licences who had used the same in the manufacture of exported goods. Hence no duty was payable on the goods so cleared by the appellants. The contention of the appellants is that in the present case the above plea was not taken into consideration while passing the impugned order.
5. The Revenue relies on the decision of the Honble Supreme Court in the case of Commissioner of Central Excise, Bhubaneshwar II vs IFGL Refractories Ltd reported in 2005 (186) ELT 529 (SC). The contention of the Revenue is that the Honble Supreme Court held that surrendering of licence by the buyer and as a result thereof assessee getting advance licences is an additional consideration by way of advance intermediate licences flowing from buyer to the assessee. In the present case, as the appellants are getting advance licences endorsed in their name, therefore, the same is additional consideration and the impugned order is rightly passed.
6. We find that the consideration of advance licences which are endorsed in favour of the appellants is an additional consideration as held by the Honble Supreme Court in the case of Commissioner of Central Excise, Bhubaneshwar II vs IFGL Refractories Ltd cited supra. The appellants raised the additional plea that the goods in question were supplied to exporters holding advance licences and the goods were further used in the manufacture of export goods hence no duty was payable on the goods so cleared by the appellants in view of Rule 13 of the Central Excise Rules. We find that on this issue the matter has already been remanded to the adjudicating authority by the Tribunal in the appellants own case in appeal E/476/06 wherein the Tribunal held as under:-
3. The learned advocate for the appellant submits that the Commissioner has wrongly assumed that the advance licenses were transformed by the exporter to them and that such transfer amounted to additional consideration. They also submitted additional grounds, stating that since the goods in question had been supplied by the appellant to exporters holding advance licenses who had used the same in the manufacture of export goods, no duty was payable on the goods so cleared by the appellant by virtue of rule 19 (2) of the Central Excise Rules, 2002 read with Notification No. 44/01 dated 26.6.2002 and therefore the question of recovering any short levy of duty on such goods cannot and does not arise. Even otherwise, if any duty is paid on the goods cleared as deemed exports, assessees are entitled to refund thereof as excise duty under Para 8.3 ) of the Exim Policy and for this reason also the question of recovering any alleged short levy of duty does not arise. It was submitted that these grounds were not considered by the Commissioner and they being legal points ought to be considered and therefore the matter should be remanded back to the Commissioner.
4. We have considered the submissions. We find that the additional grounds being now raised are legal points which are allowed and since these grounds were not raised before the Commissioner, the matter is remanded back to him for a fresh decision after taking these grounds into consideration. We accordingly waive the pre deposit and dispose of the appeal itself and remand the matter back to the Commissioner with a direction that he should look into the fresh grounds of appeal submitted by the appellants and to pass a fresh order after considering them.
7. In view of the above decision, the matter is remanded to the adjudicating authority to decide afresh after affording a reasonable opportunity to the appellants.
8. The appeal is allowed by way of remand.
(Dictated in Court.) (Sahab Singh) Member (Technical) (S.S. Kang) Vice President rk 4