Custom, Excise & Service Tax Tribunal
Commissioner, Central Excise & Service ... vs M/S Aarti Industries Ltd on 12 November, 2015
In The Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench at Ahmedabad
Appeal No.E/978/2008-DB
[Arising out of OIA No.KRS/126 to 129/Vapi/2008, dt.30.04.2008, passed by Commissioner of Central Excise & Service Tax, Vapi]
Commissioner, Central Excise & Service Tax,
Vapi Appellant
Vs
M/s Aarti Industries Ltd Respondent
Represented by:
For Appellant: Shri T.K. Sikdar, Authorised Representative For Respondent: Shri Deepak Kumar, Consultant For approval and signature:
Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL) Date of Hearing/Decision: 12.11.2015 Order No.A/11629/2015, dt.12.11.2015 Per: P.K. Das Heard both the sides and perused the records.
2. The relevant facts of the case, in brief, are that the Appellants supplied raw material to their sister unit who cleared the goods on payment of duty. The dispute relates to the under-valuation of the goods within inter unit transfer. By the Show Cause Notice dt.05.09.2006, it has proposed demand of duty of Rs.7,61,003.00 alongwith interest and to impose penalty for the period 01.04.2003 to 30.06.2005. The Adjudicating authority confirmed the demand of duty alongwith interest and imposed penalty on merit and also invoked the extended period of limitation. By the impugned order, the Commissioner (Appeals) set aside the Adjudication order on limitation and held that the extended period of limitation cannot be invoked.
3. The learned Authorised Representative for the Revenue reiterates the grounds of appeal. He submits that the Hon'ble Supreme Court in the case of CCE Vs Mahindra & Mahindra 2005 (179) ELT 21 (SC) held that the extended period of limitation would be applicable even in the case or revenue neutrality. On the other hand, the learned Counsel on behalf of the Respondent relied upon the various decisions including the decision of Hon'ble Gujarat High Court on the identical issue in favour of the Assessee.
4. We find that the Hon'ble Supreme Court in the case of Mahindra & Mahindra (supra) observed that the revenue neutrality would apply depending upon the facts of each case. In the present appeal, it is a case of inter unit transfer of the goods. The Hon'ble Gujarat High Court in the case of CCE Vadodara-II Vs Vs Indeos ABS Ltd 2010 (254) ELT 628 (Guj.) dismissed the appeal filed by the Revenue. The relevant portion of the said decision is reproduced below:-
3. As can be seen? from order of the Tribunal dated 10-11-2008 impugned in this appeal, the Tribunal has disposed of the appeal holding that the goods manufactured by the assessee were being cleared to its own sister concern, who is availing the benefit of Modvat Credit. The Tribunal has further found that as such whatever duty the assessee was paying was available as credit to its own unit (sister concern) and hence the entire exercise was revenue neutral.
4. The aforesaid? findings of facts are not disputed. The grievance was that the aspect of undervaluation has not been considered by the Tribunal at all. Grievance would have merited acceptance if the ultimate exercise would have benefited the Revenue by collection of duty in the coffers of the exchequer. In the facts of the present case, admittedly no such benefit accrues to the exchequer. In the circumstances, if the Tribunal has chosen not to determine an academic issue, it is not possible to state that any legal infirmity exists in the impugned order of the Tribunal.
5. In the present case, there is no dispute that the sister unit would avail the CENVAT Credit and cleared the final product on payment of duty. Hence, the decision of Hon'ble Gujajrat High Court is squarely applicable in this case. The learned Counsel also relied upon the other decisions as follows:-
i) CCE Vadodara-II Vs Indeos ABS Ltd 2010 (254) ELT 628 (Guj.)
ii) CCE Ahmedabad-II Vs Reclamation Welding Ltd 2014 (308) ELT 52 (Tri-Ahmd)
iii) Precot Mills Ltd Vs CCE Calicut 2014 (313) ELT 789 (Tri-Bang)
iv) Daman Ganga Board Mills Pvt.Ltd Vs CCE Vapi 2012 (276) ELT 532 (Tri-Ahmd)
v) Castrol India Ltd Vs CCE Vapi 2014 (311) ELT 71 (Tri-Ahmd)
vi) Alembic Ltd Vs CCE Vadodara-II 2014 (308) ELT 535 (Tri-Ahmd)
6. We find that there is no material available of suppression of fact with intent to evade payment of duty. It is a case of inter-unit transfer and the other unit cleared the goods on payment of duty. So, the Commissioner (Appeals) rightly set aside the demand, holding that the extended period of limitation cannot be invoked. Hence, there is no infirmity in the impugned order. Accordingly, the appeal filed by the Revenue is rejected.
(Dictated & Pronounced in Court) (P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial) cbb ??
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