Custom, Excise & Service Tax Tribunal
M/S Caprihans India Ltd vs Commissioner Of Central Excise on 31 March, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad -ooOoo- Appeal No. : E/198/2006 [ Arising out of OIA-AS/329/DAMAN/2005 dtd 22.9.2005 passed by Commissioner of Central Excise (Appeals) - DAMAN ] M/s Caprihans India Ltd - Appellant(s) Vs Commissioner of Central Excise (Appeals), DAMAN - Respondent (s)
Represented by For Assessee : Shri Anand Nainavati, Advocate For Revenue : Shri Alok Srivastava, Authorised Representative For approval and signature :
Dr. D.M. Misra, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble 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? 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 :
Dr. D.M. Misra, Hon'ble Member (Judicial) Mr. P.M. Saleem, Honble Member (Technical) Date of Hearing / Decision : 31/3/2016 ORDER No. A/10300 / 2016 dtd 31.3.2016 Per : Dr D.M. Misra, This is an appeal filed against OIA No AS/329/DAMAN/2005 dtd 22.9.2005 passed by the Commissioner (Appeals), Daman.
2. The facts of this case are that the appellant received PVC films/sheets falling under Chapter Heading 3920 of CETA 1985 from their sister unit situated at Thane and Nashik. The appellant carried out the process of printing at their Daman unit and cleared the printed films/sheets without payment of duty, claiming its classification under Chapter Heading 4902 of CETA, 1985 attracting nil rate of duty. Periodical show cause cum demand notices were issued for recovery of the duty alleging incorrect classification and non payment of duty. It was alleged that the PVC films/sheets even after printing would continue to fall under Chapter Sub Heading 3920.91 of CETA 1985 and not Chapter Heading 4902 as claimed. On adjudication, the demands were confirmed and penalty imposed. Aggrieved by the said order, the appellant filed appeal before the Ld Commissioner (Appeals), who in turn upheld the order of the Adjudicating Authority, on the issue of classification of printed PVC films/sheets; however remanded the matter to the Adjudicating Authority for re-determination of liability after extending the benefit of Modvat Credit on the inputs used. Hence, the present appeal.
3. The Ld Advocate Shri Anand Nainavati for the appellant submitted that the Ld commissioner (Appeals) following the judgment of this Tribunal dt 12.7.2005, in their own case, reported as Caprihans (India) Ltd vs CCE, Surat II 2006(205)ELT.175 (Tri Mumbai) confirmed the classification under Chapter heading 3920.39 of CETA. He submits that the said order of the Tribunal was considered by the Honble Supreme Court and also the issue has been deliberated thereafter and recently by the Honble Supreme Court in their own case reported as Caprihans (India) Ltd vs CCE, 2015(325)ELT.632 (SC). It is his contention that taking into considerations the allegation levelled in the show cause notice, the Honble Supreme Court set aside the order of the Tribunal and allowed their appeal. He submits that the present appeals be remanded to the Adjudicating Authority to examine the issues afresh in the light of the decisions of the Supreme Court delivered from time to time after the impugned order was passed.
4. The Ld Authorised Representative of the Revenue submits that the observations of the Honble Supreme Court in accepting the contention of the appellant rests on the facts alleged in the show cause notice. Therefore, to ascertain the applicability of the aforesaid judgement to the present appeal, it is necessary to examine the evidences viz., Central Excise invoice, Statutory Registers and other documents vis-a-vis the allegations in the show cause notices. Hence, he has no objection to remand the matter to the original Adjudicating Authority for scrutinising the evidences.
5. Heard both sides and perused the records. We find that the Ld Commissioner (Appeals) has disposed of the appeal by following the judgement of the Tribunal, which the appellant claimed to be no more a good law, in view of the recent decision of the Honble Supreme Court delivered in their own case. The Ld Authorised Representative on the other hand submits that the findings of the Honble Supreme Court rest on the facts alleged in the show cause notice before it, therefore, the present facts also need to be analysed alongwith the relevant Excise invoices and other evidences so as to ascertain/determine the applicability of the said judgement and other judgements on the subject to the facts of the present case. In view of the above, we are of the opinion that the matter needs to be remanded to the Original Adjudicating Authority for denovo adjudication, which both sides have fairly submitted. Needless to mention that all the issues are kept open and the appellant be afforded an opportunity of hearing.
6. As the matter is pending for more than a decade, as far as practicable the denovo proceeding be completed within three months from the date of communication of the order. The appeal is thus allowed by way of remand.
(Operative part dictated and pronounced in the open Court)
(P.M. Saleem) (D.M. Misra)
Member (Technical) Member (Judicial)
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