Custom, Excise & Service Tax Tribunal
Nirlon Ltd vs Commissioner Of Central Excise, Mumbai on 13 August, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. E/87225/2013-Mum. (Arising out of Order-in-Original No.70/10/V/2013/COMMR/ANS dt.28/2/2013 passed by the Commissioner of Central Excise, Mumbai-V ) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.S. Pruthi, 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 Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
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Nirlon Ltd.
:
Appellant
VS
Commissioner of Central Excise, Mumbai
:
Respondent
Appearance
Shri M.H. Patil, Advocate with
Shri T.C. Nair, Advocate for Appellant
Shri S.G. Dewalwar, Addl. Commr. (A.R) for respondent
CORAM:
Mr. Ashok Jindal, Member (Judicial)
Mr. P.S. Pruthi, Member (Technical)
Date of hearing : 13/08 /2014
Date of decision : 13/08/2014
ORDER NO.
Per : Ashok Jindal
The appellant is in appeal against the impugned order wherein the demand for the period January, 1995 to March, 1998 has sought to be demanded through show cause notice dt. 1.2.2000 by invoking the extended period of limitation, on the ground that appellant is manufacturer of Polyester Filament Yarn for which they are manufacturing Polyamide Chips in their own factory and also procured this raw material from the open market.
2. Revenue is of the view that the Polyamide Chips manufactured by the appellant themselves and used captively in manufacturing of their final product i.e. polyester filament yarn is required to pay duty as per Rule 6(b)(ii) of the Valuation Rules, i.e. cost of production + profit if any. Therefore, impugned proceedings were initiated against the appellant and show cause notice was issued by invoking the extended period of limitation. The demand was confirmed initially the show cause notice proposed to demand of duty of Rs. 1,02,08,891/- which was reduced to Rs. 24,24,401/- by the adjudicating authority. The said order challenged before this Tribunal by the appellant and this Tribunal remanded the matter back to determine the duty, if any payable by the appellant as per Rule 6 (b) (i) of the Valuation Rules, in remand proceedings, again the adjudicating authority confirmed the demand as per the earlier adjudication order. The said order was also challenged by the appellant before this Tribunal and again the matter was remanded back to the adjudicating authority to determine the value of captively consumed goods as per the Rule 6(b) (i) of the Valuation Rules. Thereafter in the impugned order, the Ld. Commissioner confirmed the demand of Rs. 1,02,08,891 /- along with interest and equivalent amount of penalty again. Aggrieved from the said order, the appellant is before us.
3. The issue for determination before this court is what should be the value of polyamide chips manufactured by them which have been used captively in the manufacture of final product i.e. polyester filament yarn when they have purchased certain items for polyamide chips from the open market. The Valuation Rules clearly spilt that if the comparable price is available in that situation the valuation is to be opted by invoking Rule 6(b) (i) of the Valuation Rules, not as per Rule 6(b)(ii). As the issue is that whether Rule 6 (b)(i) is applicable to the facts of this case or Rule 6 (b) (ii) of the Valuation Rules by applicable to this case. Therefore, we hold that the extended period of limitation is not inovkable.
3. In this case, the whole of the demand has been confirmed against the appellant by invoking the extended period of limitation. In these circumstances, we hold that when the issue is of interpreting particular provisions of the Rules. Therefore, the extended period of limitation is not inovkable. As extended period is not invokable, therefore, the impugned demands are not sustainable. Accordingly, the impugned order is set aside and appeal is allowed with consequential relief if any.
(Dictated in Court) (P. S. Pruthi) Member (Technical) (Ashok Jindal) Member (Judicial) Sm ??
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