Custom, Excise & Service Tax Tribunal
) M/S. Octal Refined Products Pvt. Ltd vs Commr. Of C. Ex. , Kolkata-Iii on 29 November, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Excise Appeal Nos. E/490/2007 & E/492/07
(Arising out of the Order-in-Original Nos.06/Commr. Audit/CEX/RKL/2017-18 dated-16/05/2017 & 4/Commr/CE/KOL-III/2007-08 dated-22/05/2007 (Orient Rubber Products (P) Ltd.) passed by the Commissioner of Central Excise, & S. Tax, Rourkela & Kolkata)
1) M/s. Octal Refined Products Pvt. Ltd.
2) Orient Rubber Products
Applicant (s)/Appellant (s)
Vs.
Commr. of C. Ex. , Kolkata-III
Respondent (s)
Appearance:
Shri S.P. Majumder, Advocate for the Appellant (s) Shri D. Halder, A.C. (A.R.) for the Respondent(s) CORAM:
HONBLE SHRI JUSTICE (DR.) SATISH CHANDRA, PRESIDENT HONBLE SHRI V. PADMANABHAN, MEMBER (TECHNICAL) Date of Hearing & Decision :29/11/2017 ORDER NO: F/O 78329-78330/2017 Per Justice (Dr.) Satish Chandra Both the appeals have been filed against the order-in-Original No. Order-in-Original Nos. 06/Commr. Audit/CEX/RKL/2017-18 dated-16/05/2017 and 4/Commr/CE/KOL-III/2007-08 dated-22/05/2007 dated-22/05/2007. The period of dispute is 1/9/2005 to 31/03/2006.
2. During the period under consideration, the appellant was engaged in the manufacture of pipe fittings. The appellant was claiming the SSI exemption. The Adjudicating Authority observed that during the period under consideration, the limit has crossed Rs.1.00 crore, so SSI exemption cannot be provided to the appellant.
3. During the course of argument, the Ld. Counsel submits that the appellant was also doing trading activities. If the Trading activities is deducted from the total value then turnover will come below one crore. For the purpose, he relied on the ratio laid down in the case of Commr. of Central Excise, Mumbai Vs. C.M.S. Computers Pvt. Ltd. [2005 (182) ELT (SC)], where it was observed that the value of the trading activity will have to be excluded in respect of the goods manufactured by the appellant. Value of the trading items cannot be included in the total turn over .
4. After hearing the rival submissions and by following the ratio laid down by the Honble Supreme Court (supra), we set aside the impugned orders and remand the matters to the original authority to decide the issue de novo in the light of above discussion but by providing an opportunity of hearing. Fresh evidence, if need be, admitted as per law. In other words, the Adjudicating Authority is requested to exclude the component of trading activity as observed by the Apex Court. Both the appeals are allowed by way of remand.
(Dictated and Pronounced in the open Court)
Sd/- Sd/-
(SHRI V. PADMANABHAN ) (JUSTICE DR. SATISH CHANDRA)
TECHNICAL MEMBER PRESIDENT
k.b/-
Excise Appeal Nos. E/490/2007 & E/492/07
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