Custom, Excise & Service Tax Tribunal
Emerson Process Management Ltd vs Commissioner Of Gst&Amp;Cce (Chennai ... on 31 October, 2018
1
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No.: E/41854/2018
(Arising out of Order-in-Appeal No. 240/2018 (CTA-II) dated
14.05.2018 passed by the Commissioner of Central Tax (Appeals-II),
Chennai)
M/s. Emerson Process Management Chennai Pvt. Ltd., : Appellant
[Formerly known as 'Fisher Sanmar Ltd.'],
No. 147, Karapakkam Village,
Chennai - 600 097
Versus
The Commissioner of G.S.T. & Central Excise, : Respondent
Chennai South Commissionerate Appearance:-
Ms. Meghna Arvind, Advocate for the Appellant Shri. L. Nandakumar, AC (AR) for the Respondent CORAM:
Hon'ble Shri P. Dinesha, Member (Judicial) Date of Hearing/Decision: 31.10.2018 Final Order No. 42763 / 2018 The appellant is engaged in the manufacture of Industrial Valves, Gaskets, etc., and are availing CENVAT Credit on capital goods, inputs and input services and utilize the same towards payment of Central Excise Duty.2
1.2 During the verification of accounts of the assessee for the period from October, 2015 to September, 2016, it was noticed that the assessee had manufactured and supplied 197 Control Valves to Mega Power Projects against International Competitive Bidding without payment of Excise Duty by availing exemption under Sl.
No. 336 read with Condition No. 41 of Notification No. 12/2012-CE dated 17.03.2012.
1.3 A Show Cause Notice dated 01.08.2017 was issued seeking to demand duty on industrial valves captively consumed under Notification No. 67/95-CE on the ground that clearances to Mega Power Project is not provided as an exemption in the proviso to the Notification No. 67/95-CE. The lower adjudicating authority vide Order-in-Original No. 06/2017 dated 14.12.2017 confirmed the demand along with interest and penalty. Thereafter, the appellant preferred an appeal before the Commissioner of Central Tax (Appeals-II), Chennai, who vide impugned Order-in-Appeal No. 240/2018 (CTA-II) dated 14.05.2018 rejected the appeal filed by the appellants upholding the Order passed by the lower adjudicating authority. Aggrieved by the same, the appellant is in appeal before this forum.
3
2. Today when the matter came up for hearing, Ld. Advocate Ms. Meghna Arvind appeared on behalf of the appellant and Ld. AC (AR) Shri. L. Nandakumar appeared on behalf of the Revenue.
3. During the course of hearing, Ld. Advocate submitted that the issue involved in this case is no more res integra as the same has already been considered and laid to rest by this very Bench of the CESTAT in the appellant's own case for an earlier period, in Appeal No. E/40310/2018 wherein this Bench vide its Final Order No. 42658/2018 dated 23.10.2018 has ruled in favour of the assessee.
4. Per contra, Ld. AR supported the findings of the lower authorities.
5. I have heard the rival contentions, perused the documents placed on record and have also gone through the above Order referred to during the course of arguments.
6. On a careful consideration of the Order (supra) of this Bench in the appellant's own case, I find that this Bench after considering the rival contentions, has ruled as under :
"4.1 After hearing both sides, we find that the Ld. Counsels are correct in their assertion that the matter is covered by a gamut of decisions of the Tribunal. 4.2 In Bharat Aluminium Co.Ltd. Vs CCE Raipur - 2017 (345) ELT 685 (Tri.- Del.), the Tribunal inter alia held as under :
"3. The ld. AR submitted that the exemption for the final product itself has not been categorically established. In such situation, the applicability of proviso in Notification No. 67/95-C.E. cannot be automatically made. However, we note that the original authority discussed extensively the applicability of sub-rules (1), (2) and (3) of Rule 6 of CCR, 2004 and 4 there is no mention or discussion regarding appellant's eligibility of exemption on final product. What is sought to be denied is the exemption under Notification No. 67/95 for intermediate goods and not for the final product under Notification No. 6/2006. We find that the exclusion made under sub-clause (vii) of sub-rule (6) of Rule 6 of Cenvat Credit Rules, 2004 read with proviso to Notification 67/95 makes it clear that the exemption for captive consumption of intermediate products has been correctly claimed by the appellant in the present case."
4.3 In Thermo Cables Ltd. Vs CCE Hyderabad - 2012 (202) ELT 412 (Tri.- Bang.), the Tribunal inter alia held as under
"6. From the above proviso to Notification No. 67/95-C.E. ibid, it appears that the bar created therein is not applicable to the inputs used in or in relation to the manufacture of exempted final products cleared by a manufacturer of such exempted final products as well as dutiable final products. In other words, where the manufacturer manufactures both dutiable and exempted final products and uses the inputs in question in the manufacture of the exempted final products, he is entitled to the benefit of exemption from payment of duty on such inputs in terms of the opening paragraph of the Notification. This right is not hit by the opening portion of the proviso to the Notification as the manufacturer is squarely covered by the exception carved out of the proviso vide clause
(vi) under the proviso. The Department, it appears, would like to drive the assessee out of the purview of this exception on the ground that the latter had not discharged the obligation prescribed in Rule 6 of the CENVAT Credit Rules, 2004. We have already held that the assessee did not have any liability under sub-rules (1) to (4) of Rule 6 inasmuch as these sub-rules were not applicable, by virtue of sub-rule (6), to the assessee who were clearing their exempted final products against international competitive bidding in terms of Notification No. 6/2006-
C.E. ibid. In other words, a conjoint reading of sub-rule (6) of Rule 6 of the CENVAT Credit Rules, 2004 and clause (vi) under the proviso to Notification No. 67/95-C.E. ibid would show that the assessee's claim for exemption from payment of duty on copper wire under the Notification was not hit by the opening portion of the proviso to the Notification." 4.4 A recent Tribunal decision in Kei Industries Ltd. Vs CCE Alwar - 2017 (357) ELT 1230 (Tri.-Del.) has also followed the same ratio. 4.5 We find no reason to deviate from the above ratio already laid down by the Tribunal decisions supra.
5. In view thereof, the impugned order cannot therefore sustain and requires to be set aside which we hereby do. Appeal is therefore allowed, with consequential benefits, if any, as per law."
7. I find that the above ruling squarely applies to the facts of the case on hand as there is no change with regard to facts. On the contrary, the Revenue was unable to produce any 5 Orders/judgements contrary to or distinguishing the above Order of this Bench in the appellant's own case (supra). Going therefore by the ratio laid down in the above case, I am of the view that the impugned Order is unsustainable for which reason I set aside the same.
8. The appeal is therefore allowed with consequential benefits, if any, as per law.
(Operative part of the order was pronounced in open Court) (P Dinesha) Member (Judicial) Sdd