Custom, Excise & Service Tax Tribunal
Kryfs Power Components Ltd vs C.C.E. & S.T.-Vapi on 27 July, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad ^^^ Appeal No. : E/1252/2008-SM [Arising out of OIA-KRS/199/VAPI/2008 Dated 23/07/2008 Passed by Commissioners of Central Exise, Customs and Service Tax-VAPI] Kryfs Power Components Ltd : Appellant(S) Vs C.C.E. & S.T.-Vapi : Respondent (s)
Represented by Appellant(s) : Shri Rahul Gajera (Advocate) Respondent (s) : Shri T.K. Sikdar (Autorised Representative) For approval and signature :
Mr. H.K. Thakur, Hon,ble 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?
No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No 3 Whether their Lordships wish to see the fair copy of the Order?
Seen 4 Whether Order is to be circulated to the Departmental authorities?
Yes CORAM :
Mr. H.K. Thakur, Honble Member (Technical) Date of Hearing / Decision :27/07/2015 ORDER No. A/11115/2015 Dated 27/07/2015 Per : Mr. H.K. Thakur, This appeal has been filed by the appellant against OIA No. KRS/199/Vapi/2008 Dated 23/07/2008 passed by Commissioner (Appeal) Vapi under which rejection of refund of Rs. 14,91,761/- by the Adjudication Authority was upheld.
2. Shri Rahul Gajera (Advocate) appearing on behalf of the appellant argued that appellant cleared certain goods for export to Nepal on payment of duty under Notification No. 20/2004-CE (N.T) Dated 06/09/2004. Appellant after payment of duty filed a refund claim on the ground that he was entitled to export the goods as per the provisions of Notification No. 45/2001-CE (N.T.) Dated 26/06/2001. Learned Advocated relied upon the Case Law of CCE Ludhiana Vs. Vardhman Spinning and General Mills [2008 (229) E.L.T. 99 (Tri.-Del.)]. It was his case that when two alternative benefits under different notifications are admissible then appellant can opt for any one of these notification as held by Apex Court in the case of Shri Medical Care Vs. UOI [2007 (209) E.L.T. 321 (Tri-SC], and relied upon by CESTAT Delhi in the case of CCE Ludhiana Vs. Vardhman Spinning and General Mills (Supra).
3. Heard both sides and perused the case records. As per the facts available on record there are two procedures for export of goods to Nepal. One is prescribed under Notification No. 20/2004-CE(NT) on payment of duty and the second is prescribed under Notification No. 45/2001-CE(NT) under Bond without payment of duty. Both the notifications are conditional notifications subject to fulfilling certain procedures and conditions Appellant opted to pay duty under Notification No. 20/2004-CE(NT). After the export of goods to Nepal, appellant wanted to avail the benefit of Notification No. 45/2001-CE(NT) by arguing that duty was not required to be paid. Appellant is relying upon the Case Law of CCE Ludhiana Vs. Vardhman Spinning and General Mills (Supra). This Case Law has relied upon the Apex Courts decision in the case of Share Medical Care Vs. UOI [2007 (209) E.L.T. 321(S.C.)]. The facts and issue involved in the case before Apex Court as given in para-4,5 and 6 were as follows:-
(4) In the year 1992-93, the appellant-Society imported certain medical equipments for the use in its charitable hospital. According to the appellant, under Notification No.64/88-Cus. dated March 1, 1988, exemptions were granted to hospital equipments imported by specified category of hospitals (charitable) subject to certification by Directorate General of Health Services (DGHS). The table in the notification classified hospitals in four categories. According to the appellant, it falls under para No.-3 of the table of notification.
(5) The appellant, however, along with several other hospitals, had applied for the benefit of exemption notification not under para 3 but para 2 of the table. The benefit of exemption was granted. Since the Society was also entitled to exemption under para 3 of the table, an application was made to DGHS highlighting the fact that the appellant is non-profit organization and had been permitted to import medical equipment by DGHS by certification. It has been registered as an institution to receive donations in foreign exchange and since the area of operations of the main hospital at Ghanapur and the Rural Health Hospital are in Rural Areas, it would be entitled to invoke para 3 of the table of notification of exemption. The Deputy Director General (Medical), DGHS, by an order dated January 25,2000 rejected the application of the appellant observing there in that initially the request was made by the appellant for exemption under para 2 of the Notification and accordingly, the institution was granted such exemption. It was, therefore, not open to apply for exemption under para 3 of the table of the exemption notification and the application was liable to be rejected.
(6) Being aggrieved by the above order passed by the Deputy Director General (Medical), the appellant-Society filed the above petitions in the High Court of Andhra Pradesh. The High Court also dismissed the petitions observing that it was not in dispute that the appellant (petitioner) claimed exemption in respect of hospital equipments and was allowed on the basis of its prayer under category para 2 of the table. The High Court noted that the learned counsel for the appellant-petitioner relied upon certain decisions in support of the contention that a categorization could be changed but it held that the exemption is granted in category 2 of the table, certain information was sought which was not supplied by the Society and the exemtion was withdrawn. Regarding category 3, however, the High Court observed that when the appellant did not fulfill condition relatable to category 2 institution, its claim for conversion of categorization under category 3 was untenable. Accordingly, all petitions were dismissed.
4.1 Honble Apex Court while giving opinion on the issue made following observations in para-20:-
(20) In our opinion, the decision in Mediwell Hospital would not take away the right of the appellant to claim benefit under para-3 of the Table of exemption notification. If the appellant is not entitled to exemption under para-2, it cannot make grievance against denial of exemption. But if it is otherwise entitled to such benefit under para-3, it cannot be denied either. The contention of the authorities, therefore, has no force and must be rejected.
5. In the above Case Law the opinion of Apex Court was that appellant in that case cannot be denied the benefit under para-3 if it is otherwise entitled to such benefit. It means an alternative exemption benefit can be availed by a person if he fulfills the conditions of the alternative notification. It has been ruled so by Apex Court in para-16 of Share Medical Care Vs. UOI (Supra). In the present appeal before this bench alternative notification could be admissible to the appellant only subject to execution of a bond before clearance of the goods and also by fulfilling other condition of Notification No. 45/2001-CE(NT). Further Apex Courts decision in the case of Share Medical Care Vs. UOI (Supra) was technically a remand order for the Respondent to reconsider appellants case. Respectfully differing with the views expressed by CESTAT Delhi, in the case of CCE Ludhiana Vs. Vardhman Spinning and General Mills (Supra), I hold that there are only two procedures during export of goods to Nepal under Notification No. 20/2004-CE(NT) and Notification No. 45/2001-CE(NT). Option was available with the appellant to opt for either of these at the time of export. There is no provision for normal rebate of duty paid on excisable goods under Section 11B of the Central Excise Act, when goods are exported to Nepal in view of Notification No. 20/2004-CE(NT) and accordingly there is no scope for a third alternative with the appellant seeking refund under Section 11B of the Central Excise Act 1994 by fitting the shipping bills filed and assessments completed. Appellant has also not challenged the assessment made in the shipping bills. It is also not the case of the appellant that it was prevented from opting benefit under Nofification No. 45/2001-CE(NT).
6. In view of the above observations order passed by the first appellate authority is legally correct and there is no reason to interfere with order dated 23/07/2008 passed by the first appellate authority.
7. Appeal filed by the appellant is rejected.
(Order portion pronounced in the Court) (H.K. Thakur) Member (Technical) Abhishek 5