Custom, Excise & Service Tax Tribunal
M/S. Zandu Pharmaceuticals Works Ltd vs Commissioner Of Central Excise, ... on 19 July, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI Application No. E/S/335 & 336/2010 Appeal No. E/266 & 267/2010 In Arising out of: Order-in-Appeal No. SB/84-85/Th.II/09 dated 5/11/2009 Passed by: Commissioner (Appeals), Central Excise Mumbai-I For approval and signature: Honble Shri Ashok Jindal, Member (Judicial) ============================================================
1. Whether Press Reporters may be allowed to see : No
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 Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
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M/s. Zandu Pharmaceuticals Works Ltd.
:
Appellants
VS
Commissioner of Central Excise, Thane-II
Respondents
Appearance
Shri Prakash Shah Advocate with
Shri J.H. Motwani, Advocate for Appellants
Shri S.M. Vaidya, JDR Authorized Representative
CORAM:
Shri Ashok Jindal, Member (Judicial)
Date of hearing : 19/07/2010
Date of decision : /2010
ORDER NO.
Per : Ashok Jindal, Member (Judicial)
The appellants have filed these appeals along with stay applications against the order of Commissioner (Appeals) who confirm the order of recovery of Central Excise duty amounting to Rs. 99,601/- along with interest and equivalent amount of penalty under Rule 26 of the Central Excise Rules, 2002 due to failure to produce the proof of export by the appellants against the goods cleared for export under bond/LUT.
2. The learned DR took the objection that as per the provisions of Section 35B(1) (c) of the Central Excise Act, 1944, this appeal is not maintainable before this Tribunal. He also relied on the decision of Pankaj Polumers Ltd. Vs. Commissioner of Central Excise, Nagpur reported in 2008 (222) ELT 247 (Tri.Mumbai).
3. In response to the preliminary objection raised by the learned DR, the learned Advocate submitted that the appellants are the manufacturer of the goods and they have supplied goods to the merchant exporter under CT-1 bond issued by the Maritime Commissioner and it is the duty of the Merchant Exporter to export the goods. He further submitted that the allegation against the appellant is that they have not exported the goods hence the duty demand is confirmed. When there is an allegation that the goods have not been exported, Section 35B (1) (c) is not applicable as it deals with exports of goods. Accordingly, the appeal is maintainable before this Tribunal. He also relied on the decision in the case of M/s. The New Vinod Silk Mills Pvt. Ltd. Vs. C.C. Ex, Mumbai-I vide Order No. A/199/C-IV/SMB/WZB/MUM/2007 dated 15/1/2007 wherein this Tribunal has held that Merchant Exporter executing the bond undertaking to export the goods, duty liability is to be recovered from the merchant exporter, who has furnished the bond and not from the appellant manufacturer.
4. Heard both sides.
5. The preliminary objection raised by the JDR is that this appeal is not maintainable as per Section 35B (1) (c) of the Central Excise Act, 1944 which is reproduced here as under:-
Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to-
(a)
(b)
(c) Goods exported outside India (except) to Nepal or Bhutan) without payment o duty.
(d) From the above it is cleared that the appeal before this Tribunal is not maintainable in the case where the goods exported out side India without payment of duty.
6. In this case also the issue is that goods have been exported without payment of duty. There is no doubt that the statue has taken away the power of this Tribunal to entertain this issue. Accordingly, I hold that I have no power to entertain the appeal and objection raised by the learned DR is fully justified. As held in the case of Gillette India Ltd. Vs. Commissioner of Central Excise, Delhi-III reported in 2004 (167) E.L.T. 60 (Tri.Del.),I transfer this appeal to the Joint Secretary, Revision Application (Review) for appropriate consideration as requested by the learned Advocate. Accordingly, the Stay Petitions are also disposed of.
(Pronounced in Court on /2010)
(Ashok Jindal)
Member (Judicial)
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