Custom, Excise & Service Tax Tribunal
C.C.E. & S.T.-Jammu & Kashmir vs Jindal Drugs Ltd on 14 July, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
SINGLE MEMBER
Date of Hearing: 29/6/2015
Date of Pronouncement:14.07.2015
Appeal No. E/54817/2014-EX(SM)
(Arising out of OIA No. JNK-EXCUSS-000APP-443-14-15 dated 10.7.2014 passed by Commissioner (Appeals) Customs & Central Excise, Chandigarh-II)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would 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 Department Authorities?
C.C.E. & S.T.-Jammu & Kashmir Appellant
Vs.
Jindal Drugs Ltd. Respondent
Appearance:
Present for the Appellant: Shri Ranjan Khanna, AR Present for the Respondent: Shri Goutam Chug, Advocate Coram: Honble Ms. Sulekha Beevi C.S., Member (Judicial) Final Order No.52192/2015 Per: Sulekha Beevi C.S. The Revenue has filed this appeal challenging the impugned order which set aside the penalty imposed under Rule 25(1) (a) and (d) of Central Excise Rules, 2002.
2. The Respondents are engaged in the manufacture of Cocoa Powder & Cocoa Butter from Cocoa Beans, falling under heading No. 1804, 1805 of the First Schedule to the CETA, 1985. They are availing the benefit of area based exemption under Notification No. 56/2002-CE dated 14.11.2002 and also self credit facility under the said notification. According to the Revenue this notification exempts from duty of excise or the Additional duties of excise only. The notification does not provide any exemption from payment of Education Cess or Secondary & Higher Education Cess leviable under the Finance Act, 2007. A Show Cause Notice was issued alleging that the respondents have availed self credit of Education Cess (32,19,013) & S.H.E. Cess for the period February 2012 to July 2012 which is inadmissible. The respondents defended the SCN submitted that the amount of 22,43,609 as Education Cess and Rs. 11,21,803/- as S.H.E. Cess for the period April 2012 to July 2012 has been debited as per Order-in-Original No. 677 to 681 dated 21.05.2013 under protest and that the remaining amount of E.Cess & S.H.E.Cess has not been debited as no refunds order have been received. The adjudicating authority confirmed the demand and also ordered appropriation of the debited under protest. A penalty of 48,00,000/- was imposed under Rules 25(1)(a) & (d) of Central Excise Rules, 2002.
3. Aggrieved, the respondents filed appeal before the Commissioner (Appeals) who confirmed the demand and set aside the penalty. The Revenue is in appeal challenging the order of setting aside the penalty.
4. At the time of hearing, it was brought forth from the submissions made from either side that there are divergent views as to the issue whether the E. Cess and S.H.E. Cess also would come within the scope of the duties exempted by the Notification No. 56/2002-CE (ibid). The learned DR laid much thrust on the decision of the respondents own case CCE, Jammu Vs. Jindal Drugs Ltd. 2011 (267) ELT 653 (Tri.-Del.) which held that refund is not admissible in respect of E. Cess & S.H.E. Cess under the notification.
5. The leaned Counsel appearing for the respondents referred to the judgments in Bharat Box Factory Ltd. Vs. Commissioner of Central Excise , Jammu 2007 (214) E.L.T. 534 (Tri.-Delhi), Jindal Drugs Ltd Vs. CCE, Jammu Final Order No. 296-300/07-EX. Dated 18.06.2007. Cyrus Surfactants Pvt. Ltd. Vs. Commissioner of Central Excise, Jammu 2007 (215) E.L.T. 55 (Tri.- Delhi). It is also submitted that the respondents have preferred appeal before the Honble Apex Court against the decision rendered in CCE Jammu Vs. Jindal Drugs Ltd. (supra). So also SLP filed by Revenue challenging the decision in Bharat Box Factory case is pending before the Apex Court. Thus the issue of interpretation of the Notification is pending before the Supreme Court. On such circumstances the assessee cannot be found fault with if he has taken refund/credit of the Education Cess & S.H.E. Cess. The commissioner (Appeals) has set aside the penalty for the reason that there are conflicting judicial decisions on the issue and therefore no malafide, or intention to evade duty can be attributed. From the above discussion I fully agree with the view taken by the Commissioner (Appeals) in setting aside the penalty.
6. For the foregoing, I do not find any infirmity with the order passed by the Commissioner (Appeals). The appeal filed by Revenue is dismissed.
(Pronounced on 14.7.2015) (Sulekha Beevi C.S.) Member (Judicial) K. Gupta 2