Custom, Excise & Service Tax Tribunal
M/S Chiripal Industries Ltd vs Commissioner, Central Excise & Service ... on 21 May, 2015
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Appeal No.E/577/2007 [Arising out of OIA No.78/2007(Ahd-I), dt.27.02.2007, passed by Commissioner (Appeals), Central Excise & Service Tax, Ahmedabad] M/s Chiripal Industries Ltd. Appellant Vs Commissioner, Central Excise & Service Tax, Ahmedabad Respondent
Represented by:
For Appellant: Shri P.P. Jadeja, Consultant For Respondent: Shri L. Patra, Authorised Representative For approval and signature:
Honble Mr. P.K. Das, Member (Judicial) Honble Mr. H.K. Thakur, 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 No 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?
CORAM:
HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. H.K. THAKUR, MEMBER (TECHNICAL) Date of Hearing/Decision:21.05.2015 Order No. A/10635 / 2015, dt.21.05.2015 Per: H.K. Thakur
1. This appeal has been filed by the Appellant with respect to OIA No.78/2007(Ahd-I), dt.27.02.2007, under which the first Appellate Authority has confirmed the OIO dt.22.11.2006 passed by the Adjudicating authority. The issue involved in the present proceedings is whether National Calamity Contingency Duty (NCCD) is leviable on Partially Oriented Yarn (POY) and FDY when used captively in the manufacture of the goods falling under CETH 54.02 exempted under Notification No.46/2003-CE, dt.17.05.2003.
2. Shri P.P. Jadeja, learned Consultant appearing on behalf of the Appellant argued that POY and FDY does not attract NCCD when captively consumed. That when POY is sold as such by the Appellant, NCCD is paid by the Appellant at the time of clearance from the factory. It was his case that the issue of leviability of NCCD during captive consumption is no more res integra and is covered by the following case laws decided by this Tribunal:-
a) M/s Modern Petrofils Vs CCE Vadodara-II Order No.A/2094/WZB/AHD/2011, dt.10.06.2011 (in Appeal No.E/2748/2006)
b) M/s Modern Petrofils Vs CCE Vadodara-II Order No.A/2689/WZB/AHD/2008, dt.03.12.2008 (in Appeal No.E/1640/2005)
c) M/s Filatex India Ltd Vs CCE Vapi [2014 (302) ELT 446 (Tri-Ahmd)]
3. Shri L. Patra, learned Authorised Representative appearing for the Revenue defended the order passed by the first Appellate Authority. He made the Bench go through Para 4 of the OIA dt.27.02.2007 passed by the first Appellate Authority, to drive home the point that exemption under Notification No.67/95-CE, dt.17.03.1995 is not applicable to the POY consumed captively when the end product is chargeable to Nil rate of NCCD.
4. Heard both the sides and perused the case records. The issue involved in this appeal is whether the NCCD is leviable on POY captively consumed. The Appellants has relied upon the case law of Modern Petrofils Ltd (supra) in Appeal No.E/2748/2006 passed by this Tribunal.
4.1 Para 2, 4, 5 & 6 of the above Order dt.10.06.2011 are reproduced below:-
2. The facts of the case are that the appellants are manufacturing Polyester Chips falling under sub-heading 3907.60 of CETA, Partially Oriented Yarn (PTY) falling under sub-heading 5402.32 and Polyester Filament Yarn (PFY) falling under sub-heading 5402.52 of the CETA. The National Calamity Contingent Duty (NCCD) was imposed @ 1% Adv. with effect from 01.03.2003 on the said goods as per Section 136 of the Finance Act, 2001 read with Clause 161 of the Finance Bill 2003 (now Section 169 of the Finance Act, 2003). It appeared that the exemption from the payment of National Calamity Contingent Duty (NCCD) was not available to the manufacturer of the above goods cleared to 100% EOU. Further, whereas the Notification No.46/2003-CE, dt.17.05.2003 was issued to exempt the goods falling under heading No.54.02 from the whole of the NCCD leviable thereon under Section 136 of the Finance Act, 2001 read with Clause 161 of the Finance Bill, 2003 (now Section 169 of the Finance Act, 2003) if such goods are manufactured from the goods falling under Heading No.54.02. However, there was no specific exemption notification that exempted NCCD imposed on POY cleared for captive consumption.
4. We find that the issue had already been decided by this Bench in the case of same appellant (M/s Modern Petrofils Ltd) in Appeal No.E/1640/05 reported in 2009-TIOL-515-CESTAT-AHM.
5. The facts are identical and the issue is no more res integra. The decision of the Bench is as follows:-
The appellants have challenged the impugned order confirming the demand for NCCD in respect of clearance of Partially Oriented Yarn (POY) to 100% EOU and for captive consumption with interest and penalties.
2. The learned Advocate on behalf of the appellants submits that the issue is no more res integra and submits that in respect of captive consumption, the following decisions of the Tribunal in support of his stand that NCCD is not leviable in respect of clearance for captive consumption:-
(i) Tatra Trucks India Ltd Vs CCE, Chennai reported in 2008 (227) ELT 269 (Tri-Chennai) = (2009-TIOL-1209-CESTAT-Mum)
(ii) CCE Trichy Vs Kulavi Tobacco Industry reported in 2008 (227) ELT 416 (Tri-Chennai)
3. As regards clearances to 100% EOUs, he submits that in the case of Toyota Kirloskar Motor Pvt.Ltd. Vs CCE, Bangalore reported in 2007 (217) ELT 403 (Tri-Bang) = (2007-TIOL-1422-CESTAT-BANG), it was held that NCCD is not leviable in respect of goods cleared availing the benefit of Notification No. 108/95-CE, dt.28.08.95. He submits that ratio of this judgment can be applied for the purpose of clearance to 100% EOU also.
4. We find that as pointed by the learned Advocate, the issue is no more res integra and we also agree with the contention of the learned Advocate that the judgment of the Tribunal in relation to clearance under Notification No.108/95 can be applied and therefore, NCCD is not leviable in respect of clearance to 100% EOUs also. Accordingly, the appeal is allowed with consequential relief to the appellants.
6. In view of these facts and the legal position, we find that the Order-in-Appeal No. does not stand. The appeal filed by the appellants is therefore, allowed with consequential relief.
5. It is observed from Para 2 of the above order dt.10.06.2011 that POY manufactured by that Appellant in this case was being supplied to 100% EOUs as well as consumed in captive consumption. After considering the facts of the case and the earlier orders passed in the case of Modern Petrofils Ltd [2009-TIOL-515-CESTAT-AHM], the Bench allowed the appeal filed by the Appellant Modern Petrofils. In the other case of Modern Petrofils Vs CCE Vadodara-II (supra) the clearances of POY were made under Notification No.108/95-CE, dt.28.08.1995 where the end product (POY) was cleared at Nil rate of duty. The same ratio has been followed by us in the case of M/s Filatex India Ltd Vs CCE Vapi (supra). After carefully going through the records of the case, we are of the considered view that the facts involved in the present case are similar to the facts involved in the relied upon case laws decided by this Bench.
6. Respectfully following the judicial discipline, we allow the appeal filed by the Appellant with consequential relief, if any.
(Operative portion of the order pronounced in Court)
(P.K. Das) (H.K. Thakur)
Member (Judicial) Member (Technical)
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