Custom, Excise & Service Tax Tribunal
M/S Barco Electronics Systems Pvt. Ltd vs Cce & St, Noida on 9 September, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 9.9.2014
No. E/Stay/60452-60454/2013 and E/59749-59751/2013-EX(DB)
[Arising out of Order-in-Appeal No. 76-78/CE/APPL/Noida/2012 dated 27.3.2013 passed by the Commissioner (Appeals), Central Excise, Customs & Service Tax, Noida]
For Approval & Signature :
Honble Mr. Justice G. Raghuram, President
Honble Mr. R.K. Singh, Member (Technical)
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?
M/s Barco Electronics Systems Pvt. Ltd. Appellant
Shri Manish Gaur
Shri Rakesh Kumar Vohra
Vs.
CCE & ST, Noida Respondent
Appearance:
Shri Amit Jain, Advocate - For the Appellant Shri Pramod Kr., Jt. CDR - for the Respondent Coram : Honble Mr. Justice G. Raghuram, President Honble Mr. R.K. Singh, Member (Technical) Final Order No. 53815-53817/2014 Per R.K. Singh:
These stay applications along with appeals have been filed against Order-in-Original No. 7/AC/N-II/2012-13 dated 30.11.2012 in terms of which a demand of Rs.3,86,401/- was confirmed against M/s Barco Electronics Systems Pvt. Ltd. along with interest and mandatory equal penalty. In addition penalty of Rs. One lakh was imposed on Shri Rakesh Kumar Vohra, Managing Director of M/s Barco Electronics Systems Pvt. Ltd. and Rs. One lakhs on Shri Manish Gaur, Manager (Commercial) of the said company.
2. The facts, briefly stated are as under:
M/s Barco Electronics Systems Pvt. Ltd. is a 100% EOU and cleared the goods on the inter unit transfer basis to their sister unit in the DTA without paying SAD. The adjudicating authority held that as no sales tax was paid on such inter unit transfers, in terms of Notification No. 23/2003-CE SAD was required to be paid thereon and hence the impugned demand and penalties. The appellants have contended that the issue is already covered in their favour by the judicial pronouncements.
3. Having regard to their submission and with the consent of the ld. A.R., we proceed to decide the appeal itself waiving the requirement of pre-deposit.
4. It is seen that this very issue is covered in favour of the assessee in the case of Micro Inks Vs. CCE & ST, Daman 2014-TIOL-258-CES-AHD where the CESTAT in effect, has held as under :
whenever there is inter unit transfer, it is not a sales transaction and hence sales tax/CST/VAT may not get attracted. It does not mean ipso facto that an exemption from sales tax/VAT/CST is granted by the State Government. In the absence of any notification granting exemption by the State Government from levy of Sales Tax on the finished goods which were cleared from the 100% EOU, it would be incorrect to hold that the goods were exempted from sales tax. For the purpose of taking the benefit of Notification No. 23/2003-CE as amended, the one and only condition specified in respect of the goods being cleared into DTA, is that the goods are not exempted by the State Government from payment of sales tax/VAT. In the present case (i.e in the case of M/s Micro In) there is no such exemption notification issued by the State Government exempting the impugned goods from the payment of sales tax/VAT.
5. Thus observing the CESTAT set aside the demand of SAD on such inter unit transfers.
6. Thus in view of the fact that the issue is fully covered in favour of the appellants by the aforesaid order of CESTAT, the appeals are allowed and the impugned order is set aside.
(Justice G. Raghuram) President (R.K. Singh) Member (Technical) RM 3