Custom, Excise & Service Tax Tribunal
Moon Chemicals vs Commissioner Of Central Excise & ... on 7 February, 2009
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No. E/6/2007
[Arising out of Order-in-Appeal No.7/2004-CE dated 15.6.2004 passed by the Commissioner of Customs & Central Excise (Appeals), Thiruvananthapuram]
For approval and signature:
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 Member wishes to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Moon Chemicals
Appellants
Versus
Commissioner of Central Excise & Customs, Thiruvananthapuram
Respondent
Appearance:
Shri S.Venkatachalam, Advocate Shri V.V.Hariharan, JCDR For the Appellants For the Respondent CORAM:
Honble Mr.P.Karthikeyan, Member (Technical) Date of hearing : 7.2.2009 Date of decision : 7.2.2009 Final Order No.____________ The impugned order affirmed a demand of Rs.1,03,145/- from the appellants towards clearances of final products incorrectly availing the SSI Exemption under Notification No.9/2002-CE dt. 1.3.02. The order also sustained a penalty of Rs.5000/-.
2. The appellants availed CENVAT credit and the concessional rate for its clearance of an aggregate value of Rs.100 lakhs in terms of the Notification. The original authority had found that clearances made by the appellants during the period 11.11.2002 to 2.12.2002 starting with Invoice No.206 incorrectly. In adjudication, it was found that the appellants had excluded value of clearances covered by a second set of invoices; on adding which value covered by these 36 invoices, the appellants would have been liable to full duty in terms of the Notification No.9/02. dt. 1.3.02 from invoice No.205.
3. Heard both sides. The ld. counsel for the appellants has submitted copy of our Final Order No.724/07 dt. 12.6.07 wherein it was held that clearances covered by 36 invoices impugned in the instant case were eligible for exemption under the Notification No.214/86-CE. Once the value of clearances covered by the 36 parallel invoices is held to be not includible in the value of clearances to determine clearance eligible for concessional rate under Notification No.9/02, the impugned order holding that the appellants clearances starting with Invoice No.206 were liable to suffer full rate of duty becomes unsustainable. The demand and penalty are, therefore, not sustainable. The impugned order is set aside and this appeal allowed.
(Dictated and pronounced in open court) (P.KARTHIKEYAN) MEMBER (T) gs 2