Custom, Excise & Service Tax Tribunal
M/S. Ge India Ind L Pvt. Ltd vs Cce, Pondicherry on 8 May, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
E/S/415 418/2010 & E/795 798/2010
(Arising out of Order-in-Appeal Nos. 154 to 157/2010 (P) dated 27.09.2010, passed by the Commissioner of Central Excise (Appeals), Chennai).
For approval and signature
Honble Ms. ARCHANA WADHWA, Judicial Member
Honble Dr. CHITTARANJAN SATAPATHY, Technical Member
__________________________________________________________
1. Whether Press Reporters may be allowed to see the : Yes
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 the Honble Member wishes to see the fair : Seen
copy of the Order.
4. Whether order is to be circulated to the : Yes
Departmental Authorities? __________________________________________________________
M/s. GE India Indl Pvt. Ltd. : Appellants
Vs.
CCE, Pondicherry : Respondent
Appearance Shri C.R. Raghavendra, Adv., for the appellants Shri P. Arul, Supdt., for the respondents CORAM Honble Ms. ARCHANA WADHWA, Judicial Member Honble Dr. CHITTARANJAN SATAPATHY, Technical Member Date of Hearing : 08.05.2012 Date of Decision: 08.05.2012 ORDER No._______________ Per: Archana Wadhwa, After hearing both sides duly represented by Shri C.R.Raghavendra, Ld. Advocate and Ld. AR, we find that the Commissioner (Appeals) vide his impugned order has remanded all the matters to the original adjudicating authority for re-quantification of the demand. However, while remanding he has held that penalty is imposable upon the appellants and accordingly in the impugned orders as regards penalties were upheld. We note that no duty re-quantification stands made by the lower authorities, requiring us to make any dispensing with the predeposit of the same. As regards penalty, we find that it was not proper on the part of the Commissioner (Appeals) to uphold the penalty imposition of around Rs. 1.38 lakhs in all the four appeals, without there being any re-quantification of duty before him done as arrived at as an exercise of re-quantification.
2. As such, we dispense with the condition of predeposit of penalties involved in all the cases and proceed to decide the appeals itself with the consent of both sides.
3. The issue involved in the present appeals is as to whether the appellants during the period 13.1.07 to 30.04.08 were required to discharge duty liability on their final products ie., Air Circuit Breakers and Spares to Air Circuit Breakers in terms of Section 4A of the Central Excise Act, 1944.
4. The Ld. Advocate clarifies that prior to 13.01.07, there was no requirement to put MRP on their product in terms of Rule 34A of Standards of Weights and Measures (Packaged and Commodity) Rules, 1977, in as much as their product was sold to industrial consumers. However, with effect from 31.01.07, provisions of Rule 34A were deleted and simultaneously Rule 2A was introduced. As per the explanation under Rule 2A defining industrial consumers, wherever the goods sold directly to the manufacturers, the same has to be treated as industrial consumers, in as much as the appellant was selling their goods through dealers/stockiest, the Revenue entertaining a view that they are not covered under the provisions of Rule 2A. Accordingly, demands were raised and confirmed.
5. The Ld. Advocate drawn our attention to the Karnataka High Courts decision in the case of EWAC Alloys Ltd. Vs. UOI 2012 (275) ELT 193 (Kar.) whereas, the goods made for industrial consumer and sold through dealers were held not attracting the provisions of Rule 6 requiring fixation of any MRP, if that be so, provisions of Section 4A are not attracted.
6. The Ld AR appearing for the Revenue draws our attention to the Bombay High Courts decision in the case of L & T Ltd. Vs. UOI 2012 (275) ELT 153 (Bom.), laying to the contrary. In his rejoinder, the Ld. Advocate states that the said decision of the Bombay High Court was taken note of by the Karnataka High Court and was not agreed upon. He also submits that the said decision of the Bombay High Court relies upon the Honble Supreme Courts decision in the case of Whirlpool of India Ltd. Vs. UOI 2007 (218) ELT 167 (SC), the correctness of which decision is itself doubted by the Honble Supreme Court in the subsequent judgement in the case of State of Maharashtra Vs. Subhash Arjundas Kataria 2012 (275) ELT 289 (S.C) and the matter stands referred to the Larger Bench. However, the Ld. Advocate fairly concedes that all the above legal issues were not raised before the authorities below. We find that in as much as the matter stands remanded to the original authority by the Commissioner (Appeals) for re-quantification of duty amount, the appellants are at liberty to raise the above legal points before the original adjudicating authority, we also find that upholding of penalty amount, but having corrected the demand figures before the Commissioner (Appeals) is not fair. As such the issue on penalty is also kept open to be decided by the Assistant Commissioner, to whom the proceedings already stand remanded. All the stay petitions and appeals get disposed of in the above manner.
(Order dictated and pronounced in the open Court)
(Dr. CHITTARANJAN SATAPATHY) (ARCHANA WADHWA)
TECHNICAL MEMBER JUDICIAL MEMBER
BB
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