Custom, Excise & Service Tax Tribunal
Mumbai vs Rama Krishi Rasayan Ltd on 26 April, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: C/1038/2004
[Arising out of Order-in-Appeal No: 414/2004-MCH dated 05/08/2004 passed by the Commissioner of Customs (Appeals), Mumbai I.]
For approval and signature:
Honble Shri M V Ravindran, Member (Judicial)
Honble Shri C J Mathew, 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
No
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
Commissioner of Customs
Mumbai
Appellant
versus
Rama Krishi Rasayan Ltd.
Respondent
Appearance:
Shri K. Puggal, Asstt. Commissioner (AR) for the appellant Shri J.C. Patel, Advocate for the respondent CORAM:
Honble Shri M V Ravindran, Member (Judicial) Honble Shri C J Mathew, Member (Technical) Date of hearing: 26/04/2016 Date of decision: 26/04/2016 ORDER NO: ____________________________ Per: M.V. Ravindran:
This appeal is filed by the Revenue against Order-in-Appeal No: 414/2004-MCH dated 05/08/2004 passed by the Commissioner of Customs (Appeals), Mumbai I.
2. Heard both the sides and perused the records.
3. The issue involved in this case is regarding extension of benefit of exemption from duty under Notification No. 66/94-Cus dated 01/03/1994 for the import of Steam Geared Turbine Alternator. The respondents claimed benefit of exemption Notification for the items imported as a part of renovation/modernization of the fertilizer plants and also provided a certificate from an officer not below the rank of Dy. Secretary in the Department of Fertiliser certifying that the scheme for renovation or modernization has been granted techno-economic clearance by the department and the imported goods are required. The adjudicating authority rejected the benefit of exemption only on the ground that the said certificate is signed by Dy. Advisor in the Ministry of Fertiliser and it was not clear whether the Dy. Advisor is an officer not below the rank of Dy. Secretary. The matter travelled up to the Tribunal and the Tribunal remanded the matter back directing the lower authorities to consider clarification given by the Ministry of Fertiliser. The first appellate authority on remand proceedings came to the conclusion that that the letter clarifying that the Dy. Advisor in the Ministry of Fertilisers is equal to the rank of Dy. Secretary in the said Ministry is good enough and accepting the said clarification, held that the respondent is eligible for the benefit of the exemption Notification. The Revenue is aggrieved by such an order.
4. Revenues grounds of appeal are that the first appellate authority in the earlier order has held that the goods were for sulphuric acid plant and sulphuric acid so produced would be used for captive consumption in the fertilizer plant and Notification 90/94-Cus and 91/94 are available only to fertilizer plants. He would draw our attention that once the applicability of Notification itself is in dispute whether the certificate is signed by the Dy. Secretary or a Dy. Advisor would also not make much difference, but in any case, Dy. Advisor in the Department of Fertilisers cannot be considered as a person not below the rank of Dy. Secretary in the Department of Fertilisers as indicated in the Notification. We find that the Revenues appeal is devoid of merits for more than one reason.
5. Firstly, the appellate authority was considering the remand proceedings based upon final order No. C-II/3064/WZB/2002 dated 13/08/2002 passed by the Tribunal directing him to consider the said clarification and come to a conclusion. The first appellate authority has followed the direction of the Tribunal correctly. Secondly, we find that the Revenues claim that the imported goods are used for sulphuric acid plant and it is not a fertiliser plant. Such a submission is totally mis-directed as it is common knowledge that for manufacture of fertilizer sulphuric acid is one of the prime raw material and is cost effective if produced within the plant wherein fertilizer is manufactured. It is not disputed that sulphuric acid plant is within the fertilizer plant of the respondent. Accordingly, we find that the benefit of Notification No. 66/94-Cus cannot be denied and the first appellate authority was correct in coming to such conclusion.
6. Further, we find that similar issue came up before the Tribunal in the case of Indian Farmers Fertilizers Co-Operative Ltd. vs. Commissioner of Customs, Mumbai 2004 (177) ELT 653 (Tri.-Mumbai) wherein the bench held in favour of the assessee. We also draw support from the Circular No. 18/96-Cus dated 26/03/1996 wherein a similar issue as to exemption under Notification No. 66/94 for the ammonia plant was doubted by the field officers and CBEC clarified that the fertilizer plant will not only include that unit where the finished end-product viz. fertilizer is produced but all the other units also which are engaged in the production of intermediate products for captive consumption.
7. In our view, the appeal filed by the Revenue is devoid of merits and is rejected.
(Pronounced in Court) (C J Mathew) Member (Technical) (M V Ravindran) Member (Judicial) */as 5