Custom, Excise & Service Tax Tribunal
Cce, Meerut I vs M/S Dixon Utilities & Export (P) Ltd on 18 November, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. II DATE OF HEARING : 18/11/2015. DATE OF DECISION : 18/11/2015. Excise Appeal No. 687 of 2007 with CO No. 152 of 2007 [Arising out of the Order-in-Appeal No. 258/CE/MRT-I/2006 dated 22/11/2006 passed by The Commissioner (Appeals), Central Excise, Meerut I.] For Approval and signature : Honble Shri Ashok Jindal, Member (Judicial) Honble Shri B. Ravichandran, 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 would 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 of the order? 4. Whether order is to be circulated to the : Department Authorities? CCE, Meerut I Appellant Versus M/s Dixon Utilities & Export (P) Ltd. Respondent
Appearance Ms. Neha Garg, Authorized Representative (DR) for the appellant.
Shri Amit Jain, Advocate for the Respondent.
CORAM: Honble Shri Ashok Jindal, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 53500/2015 Dated : 18/11/2015 Per. Ashok Jindal :-
Revenue is in appeal against the impugned order wherein the learned Commissioner (Appeals) allowed area based exemption availed by the respondent under Notification No. 50/2003-CE dated 10/06/2003.
2. The facts of the case are that respondent is engaged in manufacture of Colour Television, Air-Conditioners and VCD/DVD players. They filed declaration on 27/11/2003 for availing exemption under Central Excise Notification No. 50/2003-CE dated 10/06/2003. They also submitted a certificate dated 24/11/2003 of Survey Naib Tehsildar, Vikasnagar certifying that Khasra No. 262, Village Central Hope Town, Pargana Pachwadun, Tehsil Vikasnagar as their address and factory is situated therein. The Range Superintendent wrote a letter to the respondent to say that the factory situated at Plot No. C-3/1 and 262 M, Central Hope town, Pargana Pachwadun, Tehsil Vikasnagar as certified by Tehsil Vikasnagar does not get covered under Notification No. 50/2003-CE ibid. The respondent reply that they would like to establish their second establishment of line on plot No. 262, Selaqui Industrial Area, Selaqui and they are entitled for exemption as per the certificate of Naib Tehsildar. The respondent also submitted the certificate dated 22/07/2003 of Survey Lekhpal, Selaqui, Vikasnagar certifying therein that Khasra No. 262 M of village Central Hope Town is under UPSIDC and the same is part of Khasra No. 262. A certificate dated 03/08/2004 of Survey Naib Tehsildar, certifying therein that Khasra No. 262, is situated in UPSIDC, Selaqui Industrial Region, Selaqui and the same is covered in revenue village Central Hope Town. A certificate dated 24/11/2003 of Survey Naib Tehsildar regarding location of Khasra No. 262 and Plot No. C-3/1 of the unit and copy of Lease Rent Agreement dated 17/09/2003. Thereafter verifying certain records the Adjudicating Authority allowed the exemption under Notification No. 50/2003-CE ibid on the clarification that the Khasra No. 262 of the unit is covered at Sl. No. 11 of Annexure II appended to the Notification No. 50/2003-CE dated 10/06/2003 in Selaqui Industrial Area, Selaqui, Dehradun. The said order was challenged by the Revenue before the learned Commissioner (Appeals) who after examining the issue hold that the respondent is entitled for exemption under the said notification. Aggrieved from the said order, Revenue is before us. The respondent has also filed the Cross Objection.
3. Heard the parties.
4. The Revenue has contended that as per the Annexure II to the notification appended to the Notification No. 50/2003-CE ibid the premises are not covered as the Village in which the factory is located at Central Hope Town, whereas as per a certificate of Naib Tehsildar the factory is located in Selaqui Village therefore they are not entitled for exemption. It is also submitted that the said notification was amended by Notification No. 27/2005-CE dated 19th May, 2005 wherein the Village Selaqui was substituted by the word Central Hope Town and Camp Road. Therefore, from the said notification also it is clear that prior to 19th May 2005 the respondent are not entitled to avail exemption under Notification No. 50/2003-CE. In these circumstances, impugned order to be set aside. On the other hand, learned Counsel for the respondent submits that in this case there is no proper authorization has been obtained by the Revenue to file the appeal as authorization is to be given by Committee of Commissioners consisting of at least two Commissioners but in this case only one Commissioner has given authorization therefore appeal is not maintainable in the light of decision of this Tribunal in the cases of CCE, Hyderabad vs. Restile Ceramics Ltd. reported in 2008 (11) S.T.R. 245 (Tri. Bang.), CCE, Hyderabad vs. Arch Pharmalabs Ltd. reported in 2009 (239) E.L.T. 381 (Tri. Bang.), CC & CE, Hyderabad IV vs. Gland Pharma Ltd. reported in 2012 (280) E.L.T. 270 (Tri. Bang.), CCE, Indore (M.P.) vs. Ambika Refinery reported in 2014 (299) E.L.T. 384 (Tri. Del.).
5. On merits he submits that the case is squarely covered by the decision of Tirupati LPG Industries Ltd. vs. CCE, Meerut I reported in 2015 (324) E.L.T. 201 (Tri. Del.), wherein on the identical issue this Tribunal has hold that the Notification No. 27/2005-CE ibid is clarificatory in nature and, therefore, the respondent is entitled for benefit of exemption Notification No. 50/2003-CE ibid. Therefore, impugned order is to be upheld.
6. Considered the submissions. In this case, the authorization has been given by one Commissioner, therefore, the objection taken by the learned Counsel for the respondent seems to be valid. On merits also, we find that a similar/identical issue came up before this Tribunal in the case of Tirupati LPG Industries Ltd. vs. CCE, Meerut I (supra), wherein this Tribunal observed as under :-
7. As regards, the first point of dispute, the factory in which both the units are located is on Khasra Nos. 235, 237, 238/2 and 238/2 in village Central Hope Town, Tehsil Vikasnagar, of district Dehradun. In Annexure II, under Existing Industrial Estates/Regions of District Dehradun against S. No. 11 pertaining to Selakui Industrial Regions of village Selakui, Tehsil Vikasnagar, among other Khasra Nos., the Khasra Nos. 235 to 259 are mentioned S. No. 12, also pertaining to Selakui Industrial Region of village Selakui, of Camp Road, Central Hope Town of Tehsil Vikasnagar covered Khasra Nos. 1011 to 1019, 1021 to 1031, 1033 to 1051, 990 to 1002, 1006, 1008, 1009, 1054, 1055, 1064 and 1081. By amending Notification No. 27/2005-CE dated 19/5/2005, Notification No. 50/2003-CE dated 10/06/2003 was amended and against Sl. No. 11 of the existing Industrial Estates/Regions of District, Dehradun in Annexure II, the entry Selakui under column No. 3 pertaining to village, was substituted by Village Selakui, Central Hope Town and Camp Road. The Departments contention is that only w.e.f. 19/5/2005 the Khasra No. of the appellant unit got covered under the Notification No. 50/2003-CE and during period prior to 19/5/2005 the appellant unit would not be eligible for this exemption.
7.1 We do not agree with the contention of the Department. The notification No. 50/2003-CE dated 10/6/203 exempts from duty, the goods other than those mentioned in Annexure I of the notification, which has been cleared from a unit located in the Industrial Growth Centres or Industrial Infrastructure Development Centres or Export Promotion Industrial Park, or Industrial Estates or Industrial areas or Commercial Estates or Scheme Areas as the case may be specified in Annexure II and Annexure III appended thereto. The Industrial areas, Industrial estates etc. are specified in Annexure II and III, while the 2nd column mentions the name of the Industrial area, Industrial estate etc. the 3rd and 5th columns mention the village and the Tehsil under which the Industrial area/Industrial estate etc. falls. Column 4 mentions the khasra number of the plots of land of which the Industrial area/Industrial estate comprises. In this case the appellants factory is located at Khasra No. 235, 237, 238/1 and 238/2 of Selakui Industrial Region located in Tehsil Vikasnagar, District Dehradun. Even during period prior to 19/5/2005, in Annexure II under the list of Existing Industrial Estates/Region of District Dehradun Selakui Industrial region of tehsil Vikasnagar is mentioned against Sl. No. 11 and against Selakui Industrial Region among the khasra numbers, the khasra Nos. 235 to 257 are mentioned. Therefore the factory of the appellant unit has to be treated as located in the notified Industrial area and therefore eligible for exemption even during the period prior to 19/5/2005. By notification No. 27/2005-CE dated 19/5/2005, against Sl. No. 11 of the list of existing Industrial areas of District Dehradun given in Annexure II, only the name of the village mentioned in 3rd column against Selakui Industrial Region was changed from Selakui to Village Selakui, Central Hope Town and Camp Road. The amendment by Notification No. 27/2005-CE, dated 19/5/2005, by which the name of the village in which the Industrial Area Selakui Industrial Region falls was changed, is in our view, only a clarificatory amendment. Though, by the amending notification dated 19/5/2005, some minor changes were made, the Khasra No. 235 to 243 still remain covered under this Industrial Area. For the purpose of this exemption notification, what is relevant is as to whether the manufacturing unit is located in the Industrial area/estate mentioned in Annexure II and III and the khasra no. of the plot of land on which the unit is located is mentioned against that Industrial area. Just because the village in which the Industrial area falls was wrongly mentioned and the village name is corrected by amending notification, it does not mean that before the amendment, the unit was not located in the notified Industrial area and was not eligible for exemption.
7. We have gone through the observation made by the Tribunal in the case of Tirupati LPG Industries Ltd. vs. CCE, Meerut I (supra) wherein in the identical situation this Tribunal hold that just because the village in which Industrial area falls was wrongly mentioned and village name is corrected by amending notification, which does not mean that before the amendment, the unit was located in the notified Industrial area and was not eligible for exemption.
8. Therefore, following the precedent decision in the case of Tirupati LPG Industries Ltd. vs. CCE, Meerut I (supra) we hold that the respondent are entitled for benefit of exemption Notification No. 50/2003-CE dated 10/06/2003 as their factory has been located in the notified area. With these terms, we do not find any infirmity in the impugned order. Therefore, the appeal filed by the Revenue is dismissed. Cross Objection filed by the respondent are also disposed of in the above terms.
(Operative part of the order pronounced in the open court.) (Ashok Jindal) Member (Judicial) (B. Ravichandran) Member (Technical) PK ??
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