Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs Cce Surat on 25 August, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT:
II
Appeal No.E/1518/2006
Arising out of: OIA No.RS/53/SRT-II/2006,dt.7.2.06
Passed by: Commissioner of Central Excise & Customs (Appeals), Surat II
For approval and signature:
Honble Mrs. Archana Wadhwa, Member (Judicial)
Honble Mr. B.S.V. Murthy, 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 .
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?
Appellant:
CCE Surat
Respondent:
M/s Surat Jari Pvt. Ltd.
Represented by:
None for the Assessee; Shri R.S. Sangia, SDR for the Revenue.
CORAM:
MRS. ARCHANA WADHWA, MEMBER (JUDICIAL) MR. B.S.V. MURTHY, MEMBER (TECHNICAL) Date of Hearing/Decision:25.08.10 ORDER No. /WZB/AHD/2010 Per: Mrs. Archana Wadhwa:
Being aggrieved with the order passed by Commissioner (Appeals), Revenue has filed the present appeal. We have heard the learned SDR Shri R.S. Sangia for the Revenue. Nobody appeared for the respondent.
2. As per facts on record, the appellant unit is engaged in the manufacture of twisted yarn, fabrics/sarees/dress materials/suiting shirting fabrics falling under Chapter Heading 5402.52 and 5406.10 of Central Excise Tariff Act, 1985. The appellant has cleared the polyester grey fabrics and polyester twisted yarn during the month of Feb.2001 in domestic tariff area (DTA), under Notification No.2/95-CE, dt.4.1.95 and No.13/98-CE, dt.2.6.98 as amended. The appellant has affected these clearances on the basis of the permission granted by the Development Commissioner concerned. This permission appears to have been granted on the basis of 50% of the deemed export value. It was alleged that such DTA sales of their goods against the deemed export was not eligible for the concessional rate of duty under Notification No.2/95-CE, dt.1.4.95 and No.13/98-CE, dt.2.6.98. A show cause notice was issued to the appellant proposing to recover duty and imposition of penalty, interest etc. The said show cause notice was adjudicated vide impugned order-in-original, wherein duty of Rs.15,84,141/- confirmed against the appellant along with imposition of penalty of identical amount and confirmed the interest.
3. On an appeal against the above order, the Commissioner (Appeals) set aside the impugned order by relying upon the majority decision of the Tribunal in the case of Amitex Silk Mills Pvt. Ltd. Vs. CCE 2006 (72) RLT 11 (CESTAT-NDLS). It was held in the said judgment that while arriving at the 50% DTA sales, the value of deemed export is not to be excluded. Accordingly, he set aside the impugned order of the lower authority.
4. Revenue in their memo of appeal, have not disputed that ratio of the judgment in the case of M/s Amitex Silk Mills Pvt. Ltd. is not applicable to the facts of the case. However, they have submitted that the said order has not been accepted by the department and the appeal stand preferred in Honble Supreme Court of India. Surprisingly, no detailed facts as regards filing of appeal before Honble Supreme Court (Appeal Number etc.) has been disclosed in the appeal filed by the Revenue. Further, the said order of the Tribunal in the case of M/s Amitex also does not stand stayed by any higher appellate forum. As such, the same is required to be followed.
5. In view of the above, we find no merits in the Revenues case and appeal filed by the Revenue is, accordingly, rejected.
(Pronounced in Court)
(B.S.V. Murthy) (Archana Wadhwa)
Member (Technical) Member (Judicial)
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