Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs M/S. Suessan Asia Pvt Ltd Satara on 15 January, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. E/2596/05 E/CO-382/05 [Arising out of Order-in- Appeal No. PII/BKS/222/2005 dtd. 29/4/2005 passed by the Commissioner (Appeals), Central Excise, Pune II] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) Honble Mr. Raju, Member (Technical) =======================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should 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 : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
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Commissioner of Central Excise, Pune-II
:
Appellants
VS
M/s. Suessan Asia Pvt Ltd Satara
:
Respondent
Appearance
Shri. Devinder Singh Maan, Asstt. Commissioner(A.R.)for the Appellants
Shri. T. Chandran Nair, Advocate for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Honble Mr. Raju, Member (Technical)
Date of hearing: 15/1/2016
Date of decision 15/1/2016
ORDER NO.
Per : Ramesh Nair
This appeal is directed against Order-in- Appeal No. PII/BKS/222/2005 dtd. 29/4/2005 passed by the Commissioner (Appeals), Central Excise, Pune II, wherein Ld. Commissioner(Appeals) allowed the appeal of the respondent by setting aside the order-in-original.
2. The fact of the present case is that the respondent cleared imported used Capital Goods under letter of undertaking(UT 1) without payment of duty. Letter F. No. VGN(30)17/TD/2004/6364 dated 20/1/2005 was issued to the respondent wherein it was requested to reverse the credit at the time of removal of capital goods for export on the ground that the Board Circular No. 345/2/2000-TRU dated 29/8/2000 states that input/capital goods can be removed for export. The said circular refers the provisions of erstwhile Rule, 57AB. In the said letter it was further mentioned that under excise procedure, a manufacturer can export the goods under bond without payment of duty, which refers to the goods manufactured in India, whereas in respondent case, goods are imported therefore circular as well as para 3.4 of Chapter 5 of CBEC Manual will apply to indigenous goods and not for imported goods. It was also mentioned that Rule 57 AB has been repealed and there is no parallel provision contains in the Cenvat Credit Rules, 2004. Challenging the aforesaid letter, respondent filed appeal before the Commissioner(Appeals) which was allowed, aggrieved by the said impugned order Revenue filed this appeal.
3. Shri. Devinder Singh Maan, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue (appellant) reiterating grounds of appeal submits that according to Rule 6(6) of Cenvat Credit Rules, 2004 only excisable goods are removed without payment of duty for export under bond. Excisable goods means only final product and therefore capital goods on which credit was taken is not permitted to be cleared under bond for export. The Board Circular No. 345/2/2000-TRU dated 29/8/2000 is not applicable to the present case as the same is with reference to old 57AB.
4. Shri. T. Chandran Nair, Ld. Counsel for the respondent submits that firstly whatever goods is exported excise duty or CVD cannot be charged while exporting. In the present case as per para 3.4 of the Instruction Manual, the capital goods is permitted to be exported under bond therefore even though the Rule 57AB does not exist the same provision was incorporated in the instructions manual and therefore the contention of the Revenue is not correct.
5. On careful consideration of submissions made by both sides, we find that firstly in case of export of any goods duty suffered on such goods need not to be exported therefore either export shall be made under claim for rebate or under bond. Para 3.4 of Instruction Manual is very clear which is reproduced below:
3.4 There is no bar for a manufacturer to remove the inputs or capital goods as such for export under bond.
From the above para 3.4 which is parimateria to the provisions of erstwhile Rule 57AB , the export of capital goods under bond is permissible. Ld. Commissioner in the impugned order correctly held as under:
4. I have carefully gone through the case records and the various submissions made by the appellant. The issue involved for consideration in this case is whether Cenvat credit is required to be reversed at the time of clearance of imported and used Capital goods at the time of export against UT-1 Undertaking. It is observed that Rule 57AB has been repealed and there is no parallel provision contained in the present Cenvat credit Rules, 2001/2002. the contention of the department that a manufacturer can export only the goods manufactured in India under bond without payment of duty is not tanable, in view of the fact that while importation of Capital goods, the Countravalling duty to the extent of Excise duty, as if the goods have been manufactured in India, had already been recovered. In view of the above, I find that the Boards Circular No. 345/2/2000-TRU dated 29/8/2000 is applicable in this case and there is no need to reverse the credit already availed. Therefore, there is no merit in the stand of the department.
From the clear findings of the Ld. Commissioner (Appeals), there is no merit in the appeal of the Revenue. The impugned order is upheld and Revenues appeal is dismissed. CO also stands disposed of accordingly.
(Operative order pronounced in court) Raju Member (Technical) Ramesh Nair Member (Judicial) sk 5 E/2596/05