Custom, Excise & Service Tax Tribunal
Cce, Indore vs Kanoria Sugar & General Mfg. Co. Ltd on 17 October, 2016
IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing:5.10.2016
Date of Decision: 17.10.2016
Excise Appeal No.1091/2010-EX(DB)
[Arising out of Order-in-Appeal No.IND-I/305/2009 dated 15.12.2009 passed by the Commissioner (Appeals), Central Excise, Indore]
CCE, Indore Appellant
Vs.
Kanoria Sugar & General Mfg. Co. Ltd. Respondent
Appearance:
Rep. by Shri Amresh Jain, DR for the appellant/Department.
Rep. by Ms. Shreya Dahiya, Advocate for the respondent.
Coram: Honble Mr. Justice (Dr.) Satish Chandra, President Honble Mr. B. Ravichandran, Member (Technical) Final Order No. 54109/2016 Per B. Ravichandran:
Revenue is in appeal against the order dated 15.12.2009 of Commissioner (Appeals-I), Indore.
2. The short issue involved in the present appeal is the eligibility of the respondent for exemption under notification no.6/06-CE in respect of AC couplings cleared along with AC pressure pipes by the respondent for usage in delivery of water from the source to the plant, etc. More specifically, the dispute is relating to whether exemption is available to the couplings in terms of the below mentioned entry :-
Notification 6/2006-CE, exempts:-
(2) Pipes needed for delivery of water from its source to the plant and from there to the storage facility.
3. The case of the Revenue is that the exemption shall be given only to pipes not to the couplings . The Original Authority confirmed the demand of excise duty by denying the exemption. He also imposed equal amount of penalty along with penalty under Rule 27 on the respondent. On appeal, vide the impugned order, the Commissioner (Appeals) set aside the original order. Aggrieved by this order, the Revenue is in appeal before us.
4. We have heard both the sides and perused the appeal records.
5. The Revenue contended that the Boards clarification vide F.No.167/38/2007 CX 4 dated 15.06.2009 clearly brings out the scope of the exemption available to pipes. Such exemption cannot be extended to the pipe fittings.
6. Ld. Counsel appearing on behalf of the respondent relied on the decision of the Honble Supreme Court in the case of Bharat Forge & Press Industries (P) Ltd. 1990 (45) ELT 525 (SC) and submitted that the distinction made in the above circular is not tenable, both in law as well as in facts. It is submitted that the couplings are nothing but shorter version of pipes, which are classified in the same Tariff Headings of 6811.83.
7. We have noted that the first Appellate Authority has examined the scope and implication of the decision of the Honble Supreme Court as well as the subsequent clarification issued by the Board. The relevant portion of the findings are as below:-
The product pipes and coupling of the appellant are covered under the headings 6811.83 -- -- tubes, pipes and tube or pipe fitting. The heading 6811.83 covers both pipes and fittings/couplings there is no separate classification of pipe fitting, as stated in the circular for asbestos cement pipes. The circular is not applicable in the case of appellant. Its applicability is limited to those pipes, in respect of which the findings are classified in a separate heading. In terms of above clarification also the case of appellant is squarely covered by the above decision and thus exemption is available to the couplings.
Further, the clarification issued by the board is neither an act nor rule framed under the law and thus cannot take away the benefit provided in the public interest by the Government.
I further observed that Appellant, as per condition of the notification, has produced the certificate from the prescribed authority and genuineness of certificate has not been challenged by the Department. Department cannot go behind the certificates and hold that the same is not acceptable. It has been held in so many cases by the CESTAT that production of the certificate must be treated as proof of the fact that the conditions enabling them to obtain the benefit under the exemption have been fulfilled.
I find that the appellant for the purpose of the exemption was producing certificates to the department from the prescribed authority and all the facts were in the knowledge of the department therefore there is no suppression.
8. We find that in the present appeal the Revenue has simply relied on the Boards clarification mentioned above and reiterated that only the pipes and nothing else will be allowed exemption. We find such construction of the entry in the notification will be too literal and against the intended scope therein. In the present case, the essentiality certificate has been produced from the competent authority and the impugned goods were cleared for the intended purposes. There is no separate billing or clearance document for the couplings.
9. Considering the overall scope of exemption and the reasonings followed by the impugned order, we find no ground to interfere with the findings of the lower authority. Accordingly, we reject the appeal filed by the Revenue.
[Order pronounced on 17.10.2016.] ( Justice Dr. Satish Chandra) President ( B. Ravichandran ) Member (Technical) Ckp.
1Excise Appeal No.E/1091/2010-EX(DB)