Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Mumbai ... vs Industrial Marketing Corporation on 18 January, 2011
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI Appeal No. E/2158/03 (Arising out Order-in-Appeal No. PD/68/MIV/2003 dated 30.04.03 passed by the Commissioner of Central Excise (Appeals), Mumbai IV) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R. Chandrasekharan, 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 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 of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
Commissioner of Central Excise, Mumbai IV Appellant Vs. Industrial Marketing Corporation Respondent Appearance:
Shri S.M. Vaidya, JDR for the appellant Shri Ramesh Adukia, Commercial manager for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R. Chandrasekharan, Member (Technical) Date of hearing : 18.01.2011 Date of decision : 18.01.2011 O R D E R No:..
Per: Mr. Ashok Jindal, Member (Judicial) Revenue is in appeal against the impugned order wherein the order of demand of adjudicating authority was set aside by the lower appellate authority.
2. The facts in brief are that the respondent filed a classification list to classify their product in the year 1986 to classify their product. Therefore, thereafter a show-cause notice was issued by the Asst. Commissioner and same was adjudicated on 20.1.1987 classifying the product of the respondent. In some products, an exemption to Notification 52/86 was also given to the respondent for concessional rate of duty. In the meantime, another show-cause notice was also issued by the Range Superintendent to recover differential duty on the products manufactured by the respondent denying the exemption under Notification 52/86. In the year 2002, the show-cause notice issued by the Superintendent was adjudicated by the Asst. Commissioner denying the exemption under 52/86 to the respondent and confirmed demand of differential duty against them along with interest and penalties. The same was challenged by the respondent before the Commissioner (Appeals), the Commissioner (Appeals) held that as the classification for the period from February 1986 to August 1986 has already been decided by the AC vide order dated 21.1.1987 by allowing the exemption under 52/86 to some of product to be cleared at concessional rate of duty and the same was not challenged by the department. Hence, the demand for the impugned period is not sustainable. Against that order, revenue is in appeal.
3. Ld. DR submitted that the adjudication order dated 20.1.1987 is bad in law as the classification approved by the adjudicating authority by giving the Notification 52/86 was not available to the respondent as per the decision of the Tribunal in respondents own case vide order no. 1985 (22) ELT 950 and the issue of classification can be raised any moment of time. In that view impugned order is to be set aside.
4. On the other hand, respondent filed written submissions and same has been taken on record and considered.
5. After hearing the ld. DR and considering the written submission filed by respondent, we find that the classification has been approved by the Asst. Commissioner on 20.1.1987 by giving benefit of exemption Notification 52/86 at concessional rate of duty. The said order was not challenged by the department and same has attained finality during impugned period. Later on, the show-cause notice issued for the same period, by the Asst. Commissioner, demanding differential duty is not sustainable in the eyes of law. Same view has been taken by the lower appellate authority. If at all the revenue is of the opinion that the respondent is not entitled to get the benefit of the Notification no. 52/86, the order dated 20.1.1987 was to be challenged, which the revenue has failed to do so. Hence, without challenging the order of classification, the Revenue cannot raise the demand for the same period.
6. If at all, it can be done for the subsequent period only. In that event, the order confirming the demand for the impugned period for which classification issue has been settled in favour of respondent by giving the benefit under Notification no. 52/86 at concessional rate of duty which has attained finality, is not sustainable.
7. With these observations, we do not find any infirmity with the impugned order, same is upheld and the appeal filed by the revenue is rejected.
(Dictated in Court) (P.R. Chandrasekharan) (Ashok Jindal) Member (Technical) Member (Judicial) SR 4