Custom, Excise & Service Tax Tribunal
Commr. Of Central Excise, Dibrugarh vs M/S Aluminium Industries (Assam) Pvt. ... on 25 April, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
Ex. Appeal No.633/06
Arising out of O/A No.40/CE(A)/GHY/2006 dated 28.4.2006 passed by Commr. (Appeals) of Central Excise & Customs, Guwahati.
For approval and signature:
SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER
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 His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commr. of Central Excise, Dibrugarh
APPELLANT(S)
VERSUS
M/s Aluminium Industries (Assam) Pvt. Ltd.
RESPONDENT (S)
APPEARANCE Shri S. Chakraborty, Asstt. Commr. (A.R.) for the Department None for the Respondent (s) CORAM:
SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DATE OF HEARING & DECISION : 25. 04. 2012 ORDER NO.. Per Shri S. K. Gaule :
Heard both sides. The Revenue filed this appeal against the O/A No.40/CE(A)/GHY/2006 dated 28.4.2006 whereby the learned Commissioner (Appeals) upheld the lower Adjudicating Authoritys Order wherein the proceedings of the impugned show cause notice were dropped.
2. Briefly stated facts of the case are that the Respondents are engaged in the manufacture of excisable goods viz.Tea Sorting Machine, Tea Extractor Machine and parts thereof. They had classified the same under Heading No.84.33 of the Central Excise Tariff Act, 1985 attracting nil rate of duty. They also claimed the benefit under different SSI exemption notifications. The Officers of DGCEI working on intelligence made a case against the Respondents on the ground that the goods in question were classified as excisable goods. However, they wrongly availed the benefit of SSI exemption notifications. Accordingly, show cause notices were issued for recovery of duty by classifying the products under Heading 84.38 not under 84.33. There was also a proposal for imposition of penalties on the Respondents. However, the lower Adjudicating Authority dropped the proceedings against the Respondents. The Revenue challenged the same before the Commissioner (Appeals), who in turn upheld the Lower Adjudicating Authoritys Order. Aggrieved by this Order, the Revenue is in appeal before us.
4. Learned AR for the Revenue contended that Chapter Heading 84.33 does not cover Tea Sorting Machine and Tea Extractor Machine. The contention of the Revenue is that the goods are rightly classifiable under 8438. The contention is that there was an element of suppression of facts and misdeclaration/misclassification and the learned Commissioner (Appeals) failed to appreciate the same. The learned AR also reiterated what is stated in the Grounds of Appeals.
5. Learned Consultant appearing for the Respondents contended that they were clearing the goods at nil rate of duty as per their classification of the goods in question under Chapter Heading 84.33, vide their Classification List effective from 01.04.95. The Classification List was approved by the competent authority of Central Excise. The contention is that since they had been classifying the products under Chapter Heading 84.33 w.e.f.01.04.95 and thereafter effective from 01.4.96, 01.4.97, 01.4.98 and 01.4.99, they were paying the duty accordingly. The contention is that as per Chapter Heading 84.33, they had been paying the duty under the same Chapter Heading by availing the benefit of Notification and the Department did not raise any objection, so far as the approved Classification List effective from 01.04.95 was concerned. The contention of the learned Consultant is that their produce is an agricultural produce. The contention is that the agricultural produce is not defined under the Central Excise provisions. However, vide the Notification No.08/2004-ST dated 09.07.04, agricultural produce had been defined which included tea. Therefore, tea is an agricultural produce and the goods manufactured by them had rightly been classified under 84.33.
6. We have considered the submissions and perused the records. Learned Commissioner (Appeals) found in his Order as under:-
7. On merits also I find that the Assistant Commissiner has given a categorical finding in his order that the claslsification list effective from 1.4.95 was duly approved by the proper officer and similar classification lists/declarations were filed by the respondent for the periods effective from 1.4.96, 1.4.97, 1.4.98 and 1.3.99. These findings of the adjudicating authority have not been disputed in the Review Order. Copies of classification lists/declarations available in the case files presented in course of personal hearing also support this finding of the Assistant Commissioner. According to the Review Order the adjudicating authority should have appreciated the fact that evidence available before him was not available before the Assistant Commissioner at the time of approval of the classification list. But no such evidence has been specified by the Commissioner. I have perused the show-cause notice available in the case of file forwarded by the Commissioner but I do not find any such evidence in the show cause notice which was not available to the Assistant Commissioner at the time of approval/acceptance of the classifications lists/declarations. The show cause notice alleged that the respondents classification without disclosing that the machines were exclusively designed and marketed for processing and manufacturing tea in the tea industries amounted to willful mis-declaration and willful mis-statement of relevant facts. The Assistant Commissioner in the impugned order held that the show-cause notice itself was silent as to whether the machineries were cleared for some purposes other than tea industry. I am inclined to accept this finding of the adjudicating authority. The case records reflect that the department was made aware of the classification and it was open to the department to change the classification if the product was held to be classifiable under different heading/sub-heading. The adjudicating authority has also rightly recorded that under erstwhile Rule 173B(2) inserted by Notification No.17/95-CE (NT) dated 1.5.95 the proper officer is empowered to call for any document or thing or person before approving/accepting classification declarations filed by the respondent. The Honble Tribunal as well as the Apex Court have consistently held the view that when classification lists are filed and approved allegation of suppression or willful mis-statement in order to invoke extended period for demand is not sustainable. This view is confirmed by the following case laws:
(i) Bharat Carbon and Ribbon Mfg. Co. Ltd [2005(186)ELT 0491(T)]
(ii) Acons Construction Products Ltd. [2005 (184) ELT 120(SC)
(iii) Graver & Weil (l) Ltd. [2004 (174) ELT 0487 (T)]
(iv) Sapana Polyweave Pvt. Ltd. [2003(151) EIT A83(SC)]
8.The review order also held that there is no estoppel in the matterof taxation. I agree with the Commissioner that there is no estoppel in taxation matters. Taxing authority can change its view which it had taken for earlierperiod in respect of subsequent period. But this change should be prospectiveand not retrospective. I therefore hold that the adjudicating authority can notalter the classification accepted by the Assistant Commissioner who is theproper officer under Central Excise Law to finalise classification unless theAssistant Commissioners such acceptance order is challenged before higherlegal forum and is reversed by higher forum.
9. The Review Order also holds that adjudicating authority shouldalso have taken strength from the provisions of retrospective amendment made in Section 11A vide Section 110 of the Finance Act, 2002. I find that fordemanding duty under Section 11A. invoking extended period for demand, thecharges of suppression, mis-statement etc. has to be established. Thisamendment gives authority to demand for previous period of one year/five years even if classification list was approved as under Section 11A prior to itsm amendment demand could be only prospective if classification was approval by the Department in view of law laid down in Cotspun Ltd. case [1999 (113) ELT 353 (SC)].
7. We find that the learned Commissioner (Appeals) has given cogent findings. The Department could not produce anything contrary. Thus, we do not find any reason to interfere with concurrent findings of both the lower Authorities. Further, on similar facts and circumstances, this Tribunal in the case of M/s Hi Flow Pump Co. and M/s C.M.HO & Co. vide Order No.A/208-210/Kol/2012 dated 3.4.12, dismissed the appeals filed by the Revenue. In view of the above, the Order passed by the Commissioner (Appeals) is upheld and Revenues Appeal which is bereft of merit, is dismissed.
(Dictated and pronounced in the open Court)
Sd/ Sd/
(DR. D.M. MISRA) (S.K. GAULE)
JUDICIAL MEMBER TECHNICAL MEMBER
mm
6
Ex. Appeal No.633/2006