Custom, Excise & Service Tax Tribunal
The Commissioner vs M/S Asian Peroxide Ltd on 16 May, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Bench Division Bench Court I Appeal No.C/181/2007 (Arising out of Order-in-Original No.CUS.02/2006(Commr), dated 06-01-2006 passed by Commissioner of C&CE, Guntur) For approval and signature: Honble Ms. Sulekha Beevi, Member(Judicial) Honble Mr. Madhu Mohan Damodar, 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? The Commissioner. C&C.E, Guntur ..Appellant(s) Vs. M/s Asian Peroxide Ltd. Nellore District. ..Respondent(s)
Appearance Shri S.P.Rao, AR for the Appellant Shri Karan Talwar & Shri G.Prahalad, Advocates for the Respondent Coram:
Honble Ms. Sulekha Beevi, Member(Judicial) Honble Mr. Madhu Mohan Damodar, Member(Technical) Date of Hearing : 16/05/2016 Date of decision: 16/05/2016 FINAL ORDER No._______________________ [Order per: Sulekha Beevi, C.S.]
1. This is an appeal filed by revenue challenging the order passed by Commissioner of Customs and Central Excise, Guntur.
2. The respondent, M/s Asian Peroxide Ltd, were permitted to import a Diesel Generating set subject to the condition that the D.G.Set shall be used in the Bonded premises only. The D.G. set so imported was kept by respondents at their captive power plant located at Nadendlavari Kandriga Village, which was not a declared warehousing station. The respondents vide letter dated 05-11-1997 requested the Commissioner, Customs to declare Nadendlavari Kandriga Village also as a customs warehousing station in terms of Section 9 of the Customs Act.
3. The said application was not taken up for consideration. The officers, during the pendency of the application seized the D.G.set and issued show cause notice dated 31-01-2000 proposing to confiscate the D.G.set.
4. The show cause notice was adjudicated and Order-in-Original dated 10-03-2003 was passed confiscating the D.G.set. The respondents filed appeal. The Tribunal vide Final Order dated 01-10-2004 remanded the matter for denovo consideration.
5. In the remand proceedings, the Commissioner on reconsideration of the application dated 05-11-1997 filed by respondents, rejected the same. The said fact of rejection was intimated to the respondents by a letter issued by Joint Commissioner dated 09-02-2005. Thereafter, respondents produced letter bearing No.8/EOU-24/VSTZ/2005/2007, dated 07-03-2005 issued by Development Commissioner wherein permission was granted to include the additional location Nadendlavari Kandriga village to the existing EOU of respondents. The Commissioner was of the view that permission granted by Development Commissioner cannot fulfil the requirements for declaring Nadendlavari Kandriga as warehousing station. However, while rejecting the application, the Commissioner observed that the confiscation of DG set, its duty liability thereof for having kept at such premises are not subject matter of the remand made by Tribunal.
6. The Revenue in this appeal contends that the above order passed by Commissioner that confiscation of D.G.Set, its' duty liability, penalty etc. was not subject matter of remand by Tribunal is erroneous. That as per remand order, the Tribunal had not merely remanded the issue of reconsideration of the application filed by respondents but had also remanded the entire issues including the confiscation of D.G.set, its duty liability penalty etc. That the order of the Commissioner confining the remand proceedings to the issue of reconsideration of the application is not legal and proper.
7. The learned counsel appearing for the respondent placed before us the decision reported in appellants own case 2007(208) ELT 457(Tri-Bang). He submitted that respondents filed appeal against the Order impugned herein (Order-in-Original No.2/2006-dated 06-01-2006) before the Tribunal, and vide Final Order No.1550/2006 dated 15-09-2006, the coordinate bench of the Tribunal allowed the appeal of the respondents. It was observed therein that in rejecting the application, the Commissioner adopted highly technical approach which is contrary to all clarifications and instructions issued by Government/CBEC in respect of 100% EOU. The Tribunal thereby set aside the order (which is impugned in the present appeal) and allowed the request of respondents to declare Nadendlavari Kandriga village as a warehousing station with effect from the date of their application, ie. 05-11-1997. On such score, the contention of the appellants that the D.G.Set is liable for confiscation etc. is without any merits. Moreover, the appeal filed before Cestat, by Revenue against the Order-in-Original (denovo) 1/2007 dated 08-01-2007 was dismissed holding that the Commissioner has rightly implemented the Tribunals Order (reported in 2008(225) ELT 372(Tri-Bang).
8. From the above discussions, I do not find any merits in the appeal. The appeal is dismissed.
(Operative part of this order was pronounced in Court on conclusion of the hearing) (MADHU MOHAN DAMODHAR) (SULEKHA BEEVI C.S.) MEMBER (TECHNICAL) MEMBER (JUDICIAL) dks 2