Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise And ... vs M/S. Rolaster Pvt Ltd on 21 September, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/20330/2014-SM [Arising out of Order-in-Appeal No. 650/2013 dated 11/11/2013 passed by Commissioner of Central Excise (Appeals-II), BANGALORE.] For approval and signature: HON'BLE SHRI S.S GARG, 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? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 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 Commissioner of Central Excise and Service Tax Bangalore-III PB.NO.5400, QUEENS ROAD, CENTRAL REVENUES BUILDING, BANGALORE, - 560001 KARNATAKA Appellant(s) Versus M/s. Rolaster Pvt Ltd Sy. No.64, Husur Road, Alur Post, Nelamangala Taluk, BANGALORE - 562123 KARNATAKA Respondent(s)
Appearance:
Mr. N. Jagadish, AR For the Appellant None For the Respondent Date of Hearing: 21/09/2016 Date of Decision: 21/09/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 20814/2016 Per : S.S GARG The present appeal has been filed by the Revenue against the impugned order passed by the Commissioner (A) dated 11.11.2013 vide which he has allowed the appeal of the appellant and set aside the Order-in-Original. Briefly the facts of the present case are that the appellants are engaged in the manufacture and clearance of Galvanised Iron Hollow Profiles, Ducts falling under Chapter Subheading 7304 1020, Corners under Chapter Subheading 7304 9000, Aluminium Hollow Profiles under Chapter Subheading 7604 2100 and Leakage Tester falling under Chapter Subheading 8543 2090. They are clearing excisable goods for human consumption on payment of duty and removed the same for export without payment of duty against a Letter of Understanding. Appellants have cleared their final products to SEZ Units/SEZ developers/Co-developers without payment of duty against the LUT executed and availed credit of duty paid on inputs used in the manufacture of final products as per provisions of CENVAT Credit Rules (CCR), 2004. The appellant did not maintain separate accounts for the receipt, consumption and inventory of inputs meant for use in the manufacture and clearance of dutiable final products and exempted final products as required under Rule 6 of CCR, 2004. Alleging violation of Rule 6(2) and Rule 6(3), a show-cause notice was issued and the Additional Commissioner of Central Excise after due process adjudicated the case vide Order-in-Original dated 6.4.2011 and confirmed the demand along with interest and penalty. Aggrieved by the Order-in-Original, the appellant filed appeal before the Commissioner (A) who vide the impugned order allowed the appeal of the appellant and aggrieved by the impugned order, the Revenue has filed the present appeal.
2. Heard learned AR and perused the records.
3. The learned AR submitted that the Order-in-Appeal is not sustainable in law on account of the fact that Notification No.50/2008 dated 31.12.2008 does not have retrospective effect and accordingly prior to 31.12.2008 the clearances made without payment of duty to the developer of SEZ would render the assessee liable to payment in the manner prescribed under Rule 6(3) of CENVAT Credit Rules, 2004. The Notification inserted the words to a developer of Special Economic Zone for their authorised operations with effect from 31.12.2008 only.
4. None has appeared on behalf of the respondent but he case can be disposed of in their absence because the issue appears to be settled in favour of the assessee by the decision of the Bangalore Bench of CESTAT in the case of Ashlyn Enterprises vs. CCE, Bangalore in appeal No.483/2011 which case was decided by the Tribunal keeping in view the another decision of the Tribunal in the case of Sujana Metal Products Ltd. vs. CCE: 2011 (272) ELT 112 wherein Notification No.50/2008-CE (NT) dated 31.12.2008 was given retrospective effect and accordingly it was held that any goods cleared from the DTA to a developer of SEZ was to be treated as exports and not to be considered as exempted goods for the purposes of Rule 6(3) of CCR, 2004. Similar view was taken by the Honble High Court of Chattisgarh in the case of UOI vs. Steel Authority of India in Tax No.68 of 2012 dated 22.04.2013. Further, Rule 6(6)(i) of CCR was substituted vide Notification No.50/2008-CE (NT) dated 31.12.2008 viz., cleared to a unit in a Special Economic Zone or to a developer of a Special Economic Zone for their authorised operation. As per Rule 6(6)(i) of CCR, 2004, provisions of sub-rules (2), (3) and (4) of Rule 6 shall not be applicable in the case of excisable goods removed without payment of duty to a unit in SEZ or to a developer of SEZ for their authorised operation. In view of the above discussions and case laws cited supra, the issue is squarely covered in favour of the respondent and there is no ground to interfere in the impugned order passed by the learned Commissioner (A). Therefore, I uphold the impugned order by dismissing the Revenues appeal. Appeal is accordingly dismissed.
(Operative portion of the order was pronounced in open court on 21.09.2016.) S.S GARG JUDICIAL MEMBER rv 4