Custom, Excise & Service Tax Tribunal
Cce, Coimbatore vs M/S. Amaravathi Spinning Mills Ltd on 2 April, 2008
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Nos. E/422/2001 & E/7/2002 (By Deptt.)
No. E/949/2004 (By Assessee)
(Arising out of Order-in-Appeal No. 108/2000 (CBE) (D) (GVN) dated 20.12.2000 & No. 257/2001 (CBE) (D) (GVN) dated 10.10.2001 passed by the Commissioner of Central Excise (Appeals), Trichy and Order-in-Appeal No. 128/2004-CE dated 1.4.2004 passed by the Commissioner of Central Excise (Appeals), Coimbatore)
For approval and signature:
Honble Mr. P. G. Chacko, Member (Judicial)
Honble Mr. P. Karthikeyan, 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 the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
CCE, Coimbatore
M/s. Amaravathi Spinning Mills Ltd. Appellants
Vs.
M/s. Amaravathi Spinning Mills Ltd.
CCE, Coimbatore Respondent
Appearance Shri N.J. Kumaresh, SDR for the Revenue Shri M. Saravanan, Consultant, for the Assessee CORAM Honble Mr. P. G. Chacko, Member (J) Honble Mr. P. Karthikeyan, Member (T) Date of Hearing: 02.04.2008 Date of Decision: 02.04.2008 Final Order No. ____________ Per P. G. CHACKO The two appeals of the Revenue relate to the period 5.5.1999 to 30.10.1999 and the appeal of the assessee relates to the period 31.10.1999 to 22.2.2000. We shall deal with the Revenues appeal first.
2. The Deputy Commissioner of Central Excise, in an order dated 10.4.2000 had confirmed demand of duty of Rs.4,74,586/- against the assessee by denying them SSI benefit under Notification No. 8/99-CE dated 28.2.99 as amended by Notification No. 16/99-CE dated 31.3.1999 for the period 5.5.1999 to 30.10.1999. This order of the Deputy Commissioner was challenged on merits by the assessee in an appeal, which was allowed by the Commissioner (Appeals) as per Order-in-Appeal No. 108/2000 dated 20.12.2000, whereby the demand of duty stood vacated. Against the Deputy Commissioners order, the department also preferred an appeal belatedly. This appeal, which was filed on 3.1.2001, was obviously not available to the appellate authority when that authority disposed of the assessees appeal. This appeal of the Revenue challenged the jurisdiction of the Deputy Commissioner. The department took the stand that only the Joint Commissioner of Central Excise could take up adjudication of the relevant show-cause notice in terms of the Boards Circular dated 27.2.1997. The Commissioner (Appeals) dismissed the Revenues appeal after observing that the substantive issue which had arisen from the order of adjudication had already been settled in Order-in-Appeal No. 108/2000 ibid. The appellate Commissioners order of dismissal of the Revenues appeal vide Order-in-Appeal No. 257/2001 dated 10.10.2001 is the impugned order in the Revenues Appeal No. E/7/2002 before us. The Revenues Appeal No. E/422/2001 is directed against Order-in-Appeal No. 108/2000 ibid whereby the demand of duty confirmed by the original authority had been set aside.
3. After hearing learned SDR for the appellant and learned consultant for the assessee, we find that, in both the appeals of the Revenue, the sole ground is jurisdictional. In none of the appeals is there any challenge to the decision of the lower appellate authority on duty liability of the assessee. In Appeal No. E/422/2001, it is submitted that Order-in-Appeal No. 108/2000 should not have been passed when the Revenues appeal on the jurisdictional ground against the Deputy Commissioners order was pending. But we find that, no such appeal of the Revenue was pending before the Commissioner (Appeals) when he passed Order-in-Appeal No. 108/2000 dated 20.12.2000 inasmuch as the departments appeal against the Deputy Commissioners order on the jurisdictional ground was filed only on 3.1.2001. In other words, the ground raised by the appellant in Appeal No. E/422/2001 is not even sustainable on facts. This apart, after a perusal of the Honble Supreme Courts judgment in Pahwa Chemicals Pvt. Ltd. Vs. CCE, Delhi 2005 (181) ELT 339 (SC), we find that the jurisdictional objection raised by the department is not sustainable in law as well. We have also perused the relevant circular issued by CBEC, which according to learned consultant did not stand in the way of the Deputy Commissioner adjudicating the show-cause notice. We think we need not examine this aspect any further as we have already found the sole ground in this appeal to be unsustainable on facts. In the result Appeal No. E/422/2001 stands dismissed.
4. The remaining appeal of the Revenue is no better. This appeal says that the department did not accept Order-in-Appeal No. 108/2000 ibid and filed an appeal against that order and therefore this appeal should be disposed of along with that appeal. It is also stated that the lower appellate authority did not record any findings on the jurisdictional issue. Nothing is said on merits against the assessee who was already possessed of a favourable order from the Commissioner (Appeals) on duty liability. The Honble Supreme Courts ruling in Pahwa Chemicals case to the effect that, if an officer issues a notice or adjudicates contrary to circulars of the Board, it would not be any ground for holding that he had no jurisdiction to issue the show-cause notice or to adjudicate the same, also operates against the Revenue in this appeal. In the result Appeal No. E/7/2002 also gets dismissed.
5. The assessees appeal is against a demand of duty of Rs.1,08,882/- confirmed by the original authority and sustained by the first appellate authority for the period 31.10.1999 to 22.2.2000. SSI exemption under Notification No. 8/99-CE has been denied to the assessee. After hearing learned consultant for the appellants and learned SDR for the Revenue, we find that the assessee had started clearing their goods on payment of duty from 1.4.1999; that they opted for SSI benefit on 3.5.1999; that they started clearing the goods without payment of duty from 5.5.1999 and that, for the period 5.5.1999 to 30.10.1999, they obtained SSI relief from the Commissioner (Appeals). The order of the appellate Commissioner [No. 108/2000 ibid] stands affirmed. If that be so, the benefit cannot be denied to the assessee for the subsequent period. Even otherwise, as at present, the action of the assessee is found to be in terms of the decision of the Tribunals larger Bench in the cases of Commissioner Vs. Marutham Textiles (P) Ltd. 2003 (153) ELT 219 (Tri. LB), Ankit Packaging Ltd. Vs. Commissioner 2004 (165) ELT 228 (Tri. LB) and Kinjal Electricals Pvt. Ltd. Vs. Commissioner 2004 (165) ELT 300 (Tri. LB). All these decisions are to the effect that the duty-paid clearances of specified goods effected between the first day of April in a given financial year and the date of opting for SSI benefit are includible in the aggregate value of clearances for purposes of the relevant SSI exemption notification. We find that virtually this view was taken by the Commissioner (Appeals) in Order-in-Appeal No. 108/2000 ibid, which stands affirmed. In the result the appellate Commissioners order impugned in the assessees appeal is set aside and the appeal is allowed.
(Dictated and pronounced in open court)
(P. KARTHIKEYAN) (P.G. CHACKO)
Member (T) Member (J)
Rex
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