Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise,Nagpur vs M/S Universal Ferro & Allied Chemicals ... on 23 August, 2011
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. E/1193/04
(Arising out Order-in-Appeal No. RK/262/NGP-B/2003 dated 30.12.2003 passed by the Commissioner of Central Excise (Appeals), Nagpur)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. Sahab Singh, Member (Technical)
1. Whether Press Reporters may be allowed to see No
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 Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Commissioner of Central Excise,Nagpur
Appellant
Vs.
M/s Universal Ferro & Allied Chemicals Ltd.
Respondent
Appearance:
Shri V.K. Singh, SDR for the appellant None for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. Sahab Singh, Member (Technical) Date of hearing : 23.08.2011 Date of decision : 23.08.2011 O R D E R No:..
Per: Mr. Sahab Singh, Member (Technical) M/s Universal Ferro & Allied Chemicals Ltd. (hereinafter referred to as the respondent) are manufacturers of Ferro and Silico Manganese falling under chapter 72 of the Central Excise Tariff. On scrutiny of their RT13 returns for the month of October 2000, it was noticed by the department that they were having FOB value of Rs.17455/- as opening balance as on 9.10.2000 whereas they had cleared the goods valued at Rs.30,72,827/- during the period 9.10.2000 and 10.10.2000 into the Domestic Tariff Area. Since the FOB value of the clearances in the Domestic Tariff Area exceeded by Rs.30,72,827/- differential duty at full rate on such exceeded clearances worked out to be Rs.11,55,490/- for which a show-cause notice was issued to them. show-cause notice was confirmed by Additional Commissioner vide OIO 77/VKA/ADC/2003 dated 10.9.2003 who confirmed the duty of Rs.11,55,490/- and also imposed equal amount of penalty under Section 11AC of the Central Excise Act and also penalty of Rs.12 lakh under Rule 209 of the Rules. Against this order, the respondent have filed an appeal before the Commissioner of Central Excise (Appeals), who vide impugned order set aside the order in original and allowed the appeal filed by the assessee. Against this impugned order, the department has filed an appeal before this Tribunal.
2. Ld. SDR appearing for the Revenue has stated that respondent had cleared the goods on 9th and 10th October 2000 without any permission from the Development Commissioner. He stated that the permission was granted by the Development Commissioner vide letter no. SEEPZ/28/EOU/DTA/98/1989 dated 13.10.2003 whereas the goods have been cleared to the Domestic Tariff Area by the respondent on 9th and 10th October 2000. Therefore, the clearances made to the Domestic Tariff Area were without any permission from the Development Commissioner. He further submitted that the Commissioner (Appeals) in his order at one point has accepted that the permission is required for concessional rate in DTA sale and at the same time he has also allowed the appeal of the respondent.
3. Another point raised by the ld. SDR is that the respondent have undertaken the job work on part of domestic units which is not permissible for them and the Commissioner (Appeals) has not given any finding on this issue.
4. Nobody appeared on behalf of the respondent. But cross objections have been filed by them opposing the Revenues appeal and the respondent has stated that Commissioner (Appeals) has rightly allowed them the relief.
5. After going through the case records, we find that the short question to be decided in this case is whether the respondent are entitled to the concessional rate on the clearances cleared on 9th and 10th October 2000. We find that respondent have already applied to the Development Commissioner for permission to DTA sales. However, the permission for DTA sales was not received by them on 9th and 10th October 2000 and Development Commissioner has issued the permission later vide letter dated 13.10.2000. This permission is governed by the provisions laid down by 9.9(b) of the Export Import Policy April-1997 to March 2002. This permission is for the quarter 1.7.2000 to 30.9.2000 and is valid up to 30.9.2003. We find that Commissioner (Appeals) has agreed with the submission of the respondent that though the authorisation is dated 13.10.2000 it is effective from the date of accrual of entitlement for DTA sales i.e. from 1.10.2000. We are inclined to agree with the Commissioner (Appeals) and hold that substantive benefit of concessional rate of duty cannot be denied to the respondent due to delay in issue of authorisation letter by the Development Commissioner. We uphold the finding of the Commissioner (Appeals) in this regard.
6. Regarding the question of doing job work for domestic units, we find that Commissioner (Appeals) has found that adjudicating authority has not considered issue of job work either for confirming demand or imposition of penalty. Therefore, he has not given any finding on the issue. We agree with the Commissioner (Appeals) on this point also. Accordingly, we dismiss the appeal filed by the Revenue.
(Operative part pronounced in Court) (Ashok Jindal) (Sahab Singh) Member (Judicial) Member (Technical) SR 5