Custom, Excise & Service Tax Tribunal
Commissioner (Appeals) vs M/S Rishi Ship Breaker on 22 December, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad -ooOoo- Appeal No. : E/1429/2011 Arising out of OIA-61/2011-BVR-/RBT/COMMR-A-/RAJ dt 20/09/2011 passed by the Commissioner (Appeals), Central Excise-RAJKOT Commissioner (Appeals) Central Excise Rajkot - Appellant(s) Vs M/s Rishi Ship Breaker - Respondent (s)
Represented by :
Appellant(s) : Shri S N Gohil, Authorised Representative Respondent (s) : None For approval and signature :
Dr. D.M. Misra, Hon'ble Member (Judicial) 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) Date of Hearing / Decision : 22/12/2016 ORDER No. A/11970 / 2016 Per : Dr D.M.Misra, None present on behalf of the Respondent. Heard Ld AR for the Revenue.
2. This appeal is filed against OIA-61/2011-BVR-/RBT/COMMR-A-/RAJ dt 20/09/2011 passed by the Commissioner (Appeals), Central Excise-RAJKOT.
3. The short point needs to be addressed is whether the Respondents are eligible to 100% of Additional duty of Customs paid on the ship breaking scrap received in their factory on 25.02.2011 as CENVAT Credit or 85% of the said duty as Credit in view of the Notification No. 03/11 CE(N.T) dt.01.03.2011, as the out of Customs charge was given only on 04.03.2011, that is, after introduction of the said Notification. The Ld. Commissioner(Appeals) in the impugned Order analysing the issue in detail observed:
Now coming to the receipt of the goods by the appellant, I find that the input ship was beached on 25.02.2011 in the plot of the appellant. Further, the duties were paid on 22.02.2011. The state authority has also granted permission to beach the ship in the plot of the appellant. Thus, the input ship was well within the premises of the appellant which is registered premises under the Central Excise Act, 1944 as well as customs area under Customs Act. The Lower Authority has stated that since the input was received by them before 04.03.2011. I find that the out of customs charge means the goods can be cleared outside port/customs area. Here in this case the goods were already in the premises of the appellant on 25.02.2011. After payment of duties, certain formalities of customs viz., breaking of radio set and payment of other dues are to be complied with by the appellant. Then the ship is to be cleared out to customs charge by the customs authority. Therefore, it can be concluded that the out of customs charge, in this case, is nothing but a permission to break the ship.
4. I do not find any justification to disagree with the said reasoning and conclusion of the Ld. Commissioner(Appeals), which is in consonance with the statutory provisions of Cenvat Credit Rules,2004. In the result Revenues appeal being devoid of merit, is accordingly rejected.
(Dictated and pronounced in the Court) (D.M. Misra) Member (Judicial) swami ??
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