Custom, Excise & Service Tax Tribunal
M/S Aquamall Water Solutions Ltd vs Cce, Meerut on 31 July, 2008
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL NEW DELHI PRINCIPAL BENCH - COURT NO. 1 Excise Stay No. 1341 of 2008 in Excise Appeal No. 1381 of 2008 DATE OF HEARING : 31.07.2008 DATE OF DECISION : 31.07.2008 M/s Aquamall Water Solutions Ltd. . Applicant (Rep by Sh. Ravi Raghvan & Sh. Ganesh Babu, Adv.) VERSUS CCE, Meerut . Respondent
(Rep. by Sh. C.S. Rajput, DR) CORAM : HONBLE MR. JUSTICE S.N. JHA, PRESIDENT HONBLE MR. M. VEERAIYAN, MEMBER (T) ORDER NO.______________________________ PER M. VEERAIYAN :
Heard both sides extensively on the stay petition.
2. The appellant is manufacturing various items like Water Filter-cum-Purifier, Water Filter Cartridge and Food Grade Pipes in an area covered for exemption under Notification 50/2003. They claimed that they have increased the production capacity of Water Filter-cum-Purifier from 1,44,000 units to 3,00,000 units per year and accordingly from October, 2003 and were availing benefit of exemption under Notification 50/2003 in respect of the said products. They have also undertaken substantial expansion of extruded pipe unit on 15.05.2006 and Water Filter Cartridge unit on 15.07.2006 as intimated by them vide their letter dated 29.01.2007 to the Assistant Commissioner. In fact, they had earlier informed the Assistant Commissioner vide their letter dated 03.11.2003 about the proposal to undertake substantial expansion. The present demand relates to the period from May, 2005 to June, 2006 i.e earlier to the period of substantial expansion as claimed in their letter dated 29.01.2007.
3.1 Learned advocate submits that even for the period prior to May, 2006/July, 2006 they were entitled to avail the exemption as their installed capacity of the production, as a whole, was increased by more than 25%. We are not, prima facie, in agreement with this view and it has to be considered in detail at the time of final hearing.
3.2 Learned advocate also submits that the demand has been worked out on the higher side by adopting higher quantity of clearance of Water Filter Cartridge and Food Grade Pipes, and he drew our attention to details furnished in page 60 and 61 of the paper book. According to him, the duty should come only to Rs. 29,06,080/-. However, he fairly concedes that this disputed details relating to excess clearances having been taken for the demand of duty has not been brought before the learned Commissioner for his findings.
3.3 He also submitted that there have been some show cause notices by the Additional Commissioner relating to the period April, 2005 to March, 2006 on identical issue and the same have been decided in their favour by him by an order dated 28th September, 2007. The order of the Commissioner is dated 31.03.2008. Learned advocate fairly concedes that the issuance of notices on identical matter by two different authorities, though claimed by them now, has not been brought before either of the adjudicating authorities. Even after the Additional Commissioner issued an order dated 28th September, 2007, there is no explanation as to why the Commissioner could not have been informed of this development as the adjudicating proceedings were still pending before him. We also would like to observe that if the matter was under adjudication by the Commissioner, it was not proper on the part of the Additional Commissioner to decide the issues.
3.4 Learned advocate also submits that the Commissioner has relied upon in para 17 and 18 of his order of the reports which were obtained behind their back and after personal hearing was over. Even if this report is to be ignored, we note that the demand relates to period prior to the admitted dates of substantial expansion by the applicant.
3.5 He also brought to our notice that the Commissioner (Appeals) has vide order dated 31.01.2006 dropped proceedings relating to the period October, 2003 to April, 2005 covering all these products. However, learned DR submits that the expansion has to be considered during the relevant period and the Commissioner could not have dealt with the expansion which was completed in May, 2006/July, 2006 in his order relating to the period upto April, 2005.
4. Taking into account the entire facts and circumstances of the case, we are of the, prima facie, view that the applicant has not made out a case for total waiver of the dues as per the impugned order. Therefore, we direct the applicant to deposit a sum of Rs. 50 lacs (rupees fifty lacs only) within twelve weeks from today and report compliance on 04th November, 2008. Subject to deposit of above amount, we waive the requirement of pre-deposit of the balance amount of duty and the entire amount of penalty during the pendency of the appeal.
(Dictated and pronounced in the open Court on the 31st day of July, 2008) (JUSTICE S.N. JHA) PRESIDENT (M. VEERAIYAN) MEMBER (TECHNICAL) Golay