Custom, Excise & Service Tax Tribunal
M/S.Areva T & D India Ltd vs Cce, Allahabad on 3 December, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
DIVISION BENCH
Court No.3
Excise Appeal No.E/1387/2006,
(Arising out of OIA No.128 to 129-CE/Alld/2005 dt.21.12.05 passed by the CCE (Appeals), Allahabad)
Date of Hearing/Decision: 03.12.2014
For approval and signature:
Honble Mrs.Archana Wadhwa, Member (Judicial)
Honble Mr.Rakesh Kumar, 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?
M/s.Areva T & D India Ltd. Appellant
(earlier known as Alstom Ltd.)
Vs
.
CCE, Allahabad Respondent
Excise Appeal No.E/1918-1919/2006
CCE, Allahabad Appellant
Vs
M/s.Areva T & D India Ltd. Respondent
(earlier known as Alstom Ltd.)
Jyoti Structural Ltd.
Present for the Appellant: Ms.Tuhina, Advocate and vice versa
Present for the Respondent: Shri M.S.Negi, AR and vice versa
Coram: Honble Mrs.Archana Wadhwa, Member (Judicial)
Honble Mr.Rakesh Kumar, Member (Technical)
FINAL ORDER NO.54669-54671/2014
PER: ARCHANA WADHWA
All the 3 appeals are being disposed of by this common order as they arise out of the same impugned order passed by the Commissioner (Appeals) vide which he has confirmed the demand against M/s.Alstom Ltd. (now known as Areva T & D India Ltd.) falling within limitation period and has set aside the demand falling outside the limitation period. He has also set aside the penalty imposed on M/s.Alstom Ltd. as also on M/s.Jyoti Structural Ltd. with which Revenue is aggrieved and has filed the present two appeals.
2. After hearing both sides duly represented by Ms.Tuhina, ld.Advocate for the assessee and Shri M.S.Negi, ld.AR for the Revenue, we find that M/s.Alstom Ltd. was supplying the goods to M/s.Jyoti Structural Ltd., by availing the benefit of exemption Notification No.108/95-CE dt.28.8.95. The said notification exempted goods supplied to project funded by International Organization. Inasmuch as M/s.Jyoti Structural was funded by Japan Bank of International Corporation, which was not international organization in terms of section 3 of the United Nations (Privileges and Immunities) Act, 1947, the benefit was not admissible to the appellant.
3. Accordingly, they were issued two show cause notices dated 5.11.03 and 28.3.02, one falling within the period of limitation and other invoking longer period of limitation. The demands were confirmed in terms said show cause notices alongwith imposition of penalty.
4. On appeal, the Commissioner (Appeals) has set aside the demands falling out outside the limitation period, by following various decisions of the Tribunal. However he has confirmed the demand against M/s.Alstom Ltd., which was within limitation period but set aside penalty imposed on M/s.Alstom Ltd. and M/s.Jyoti Structural Ltd.
5. The contention of the ld.Advocate appearing for the assessee is that they are not disputing duty confirmed falling within the limitation period. However, she submitted that though the differential duty was deposited by them after issue of show cause notice, the Commissioner (Appeals) has not accepted the said deposits.
6. When the said fact was placed before the Commissioner (Appeals), he observed as under:
17. The appellants No.1 have also submitted that a sum of amount Rs.14,28,000.00, was paid by them as duty, before issuance of show cause notice dated 05.11.2003, and the same should be adjusted against their actual duty liability. The adjudicating authority has not conceded the request of the above appellants for the reason that the said deposit of amount has no relation with the demand, as the same was deposited in respect of clearances made after the date of issue of the show cause notice. In this context, I find that there is no any provision under the Central Excise laws regarding payment of duty, by way of adjustment, as claimed by the appellants No.1. Besides, the supplementary invoices referred by the appellants No.1 do not establish their claim that the duty paid was actually in respect of the goods which were cleared during the disputed period. In view of these legal and factual position, I do not find any substance in the submission of the appellants No.1 for interference in the above finding of the lower adjudicating authority.
7. Ld.Advocate has drawn our attention to the letter dated 5.4.02 written by them to the Additional Commissioner, Central Excise, Allahabad which is reproduced below for ready reference:-
Subject DEMAND CUM SHOW CAUSE NOTICE Kindly refer to your Demand Cum Show Cause notice reference No.C.No.V(I)CIU/2002/01 dated 28.3.2002. We would like to intimate you that we have debited Excise duty amounting of Rs.3,36,000/-, Rs.7,56,000/- and Rs.3,36,000/- vide RG 23A Pt.II entry No.001,002 and 003 against invoice Nos.20022, 20023 and 20024 all dated 5.4.2002.
The amount of Rs.2,10,444/- shown in the Annexure B of Show cause notice does not pertain to M/s.Tata Projects Ltd.
Hope you will find this in order and drop the proceedings of the above mentioned Demand cum show cause notice.
Thanking you, Yours faithfully, For ALSTOM Limited
8. It is the contention of the appellant that the demands already stands deposited by them and have to be considered as deposit towards demands raised by show cause notice dated 28.3.2002. Further grievance of the assessee is that though demand of Rs.2,10,444/- in respect of supply not made to M/s.Tata Projects Ltd., another project funded by Japan Bank of International Corporation, the same also stands confirmed without dealing with such contention of the assessee and without appreciating the same.
9. We do not appreciate the observation of the Commissioner (Appeals) made in para 17 referred to above. If an assessee has admitted his duty liability and has deposited the amount after issuance of show cause notice, the same has to be treated as deposit towards confirmed demand of duty. We really fail to understand and appreciate the observation made by the Commissioner (Appeals) that there is no provision under Central Excise law to make payment of duty by way of adjustment. If the duty has been deposited by an assessee even before adjudication, such deposits have to be held as deposit of the demands confirmed in the adjudication order. Accordingly, we direct the lower authority to verify the fact of duty deposits made by the appellant and treat the same towards confirmed duty in the present impugned order.
10. As the matter is being remanded, the lower authority is directed to consider the above plea of the assessee in respect of demand of Rs.2,10,444/- and pass appropriate orders.
11. As regard Revenues appeal, we find that only ground raised by them is in respect of penalty. They have not challenged the dropping of demand on the point of limitation. If that be so, non imposition of penalty by the Commissioner (Appeals) is appropriate. Otherwise also we find that issue stands decided by various decisions of Tribunal, which stand confirmed by higher court. One such reference can be made to the judgement of High Court of Bombay in the case of CCE & C vs. EMI Transmission Ltd.-2013 (292) ELT 329 (Bom.).
12. In view of above, we reject Revenues appeal.
10. All the three appeals are disposed of in the above manner.
(Pronounced in the open court)
(RAKESH KUMAR) (ARCHANA WADHWA)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
mk
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