Customs, Excise and Gold Tribunal - Tamil Nadu
M/S Tecco vs Commissioner Of Central Excise, ... on 23 August, 2001
ORDER
Shri S.L. Peeran
1. Appellants are aggrieved with the Order-in-Original No.5/2000 dated 30.8.2000 by which the ld Commissioner did not grant benefit of Notification No.59/90 and the judgment of M/s. DELHI TOURISM & TRANSPORTATION DEVELOPMENT CORPN. Vs CCE - reported in 1999(114) ELT 421(T) in terms of the remand order passed by the Tribunal vide final order No.93/2000 dated 17/1/2000. The Commissioner has attempted to distinguish the judgments of the Tribunal and has given a finding that benefit of notification cannot be extended to the item in question and further negatived the plea of the appellants with regard to demands being time barred and confirmed duty in terms of order including penalty.
2. While granting stay of recovery and waiver of pre-deposit of Stay Order No.214/2001 dated 24.5.2001, the Tribunal noted that the case was covered by the judgment of DT & TDC (supra) and further the points by the Commissioner had been fully answered by subsequent order of the Tribunal rendered in the case of K.S. & Company by final order No.1811/2001 dated 14.12.2000 wherein identical issue was dealt with and the Tribunal clarified that the item in question was covered by the benefit of the notification and the earlier judgments rendered by the Tribunal in DT & TDC case would apply to the facts of the case. The judgment of K.S.&COMPANY was against a similar order by the CCE Madurai, therefore it accepted the plea to take up the appeal out of turn and to decide the same today and called upon the Revenue to file the report.
3. Ld.DR points out to the report on record which was already considered at the time of stay application. He reiterates the plea that cement articles at the construction site of Railways are not eligible for the benefit of the notification. The report of the Dy.Commissioner states that benefit of the notification is restricted to building and not to Railway bridges etc.
4. Ld.Consultant submits that the Tribunal has examined the term "building" and has held that it includes even bridges for which the material is being used by the Railways. He refers to the judgment of K.S.& Co. which dealt with the same items/articles supplied to Railways and contends that the issue is no longer re integra.
5. On a careful consideration of the submissions, we are of the considered opinion that in the remand proceedings, the Commissioner was directed to re-examine the issue in the light of the judgment rendered in Delhi Tourism & Transportation Development Corporation Vs CCE. However, he has distinguished the same and to this effect, the Dy.Commissioner had also filed a report. However, the Tribunal while considering their stay application by stay order No.214/2001 dated 24.5.2001, took into consideration the subsequent final order No.1811/2000 dated 14.12.2000 in the case of K.S.& COMPANY which upheld the assessee's plea and applied the Tribunal judgment noted supra. The findings given by the Tribunal in K.S.Swamy & Co. in paras-7 to 9 are reproduced below:-
"7. We have heard the rival submissions. We have also perused the evidence on record as also the case-law cited and relied upon by the Consultant for the appellants. We note that intimation about manufacture of cement articles supplied to railways was given by the appellants to the Central Excise authorities concerned. Thus, there was no misstatement of acts or suppression of information so as to invoke the larger period. In the instant case and the entire demand is beyond the period of six months, therefore, the same is set aside. The penalty also is set aside, in view of the fact that the demand is not sustainable in law.
8. We further note that the appellants were manufacturing cement articles for supply to railways at site, allotted by railways. In the instant case, we find that the appellants are entitled to the benefit of Notification No.59/90, inasmuch as the site for manufacture of cement articles was allotted to the appellants by the railway authorities, as the railways were converting the meter Gauge rails into Broad Gauge. We find that the appellants in support of their contention cited and relied upon the decision of the Tribunal in the case of DELHI TOURISM & TRANSPORTATION DEVELOPMENT CORPN. Vs CCE cited above. The ratio of this decision is applicable to the facts of this case of the appellant. In view o the fact that the railways also intimated to the Central Excise authorities that the site was allotted by them for manufacture of the cement articles, thus, on this count also, the appellants are entitled to the benefit of the Notification.
9. Thus, on both counts, the impugned order is not sustainable in law, the same is set aside and the appeal is allowed."
6. The above findings in the case of K.S.Swamy & Co. would apply to the facts of the present case and applying the ratio thereof, the impugned order is set aside and appeal allowed with consequential relief, if any, as per law.
(dictated and pronounced in open court)