Customs, Excise and Gold Tribunal - Calcutta
Sail (Bokaro Steel Plant) vs Commissioner Of Central Excise, ... on 7 August, 2001
JUDGMENT
G.R. Sharma
1. M/s. SAIL. Bokaro Steel Plant have filed the appeal against the confirmation of demand of Rs.14,96,206/- (rupees forteen lakh ninty six thousand two hundred and six) and imposition of penalty of Rs.5,00,000/- (rupees five lakh). The facts of the case are that the appellants are engaged in the manufacture of iron and steel products. Within the same factory premises according to the appellants they manufacture refractory bricks or ramming mass. Two show cause notices were issued. Show cause notice dt.15.10.91 was in respect of burnt Dolomite which was being manufactured for captive consumption. Second show cause notice dt.20.12.94 was in respect of Tar-bonded burnt Dolomite bricks. The appellants in both the cases among other things claimed benefit of not fn.no.281/86. This notification among other things exempted goods manufactured in a workshop within a factory and used for repairs or maintenance of machinery installed therein under not fn.no.281/86. The Commissioner dropped proceedings, however imposed a penalty of Rs.10,000/- (rupees ten thousand) in respect of show cause notice dt.15.10.91 holding, "in view of foregoing discussion, I hold that there is no merit in the above notice and no duty is recoverable on burnt Dolomite cleared by the assessee in pursuance of this notice. Accordingly I refrain from going further in the merits of the submissions made in their favour by the assessee".
2. In regard to show cause notice dt.20.12.94, the ld.commissioner examined only the value enhancement aspect by addition of profit margin and did not examine the claim of the appellant for benefit of not fn.no.281/86 and the point about exacisability of the product raised specifically in reply to the show cause notice.
3. We have heard Shri S.P.Majumdar, ld.adv. for M/s.SAIL and Shri A.K.Chattopadhyay, ld.JDR for the ld.Commissioner. We have also perused the order passed by the ld.Commissioner. We find that there is force in the arguments of the ld.counsel for the appellant that though they had taken the plea of claiming the benefit of not fn.no.281/86 and the plea that the product is not excisable, yet from the order we do not find any comments on these two points specifically raised. Since these two points are very material for deciding the issue in terms of the order of the larger Bench in the case of TISCO Ltd.v.CCE, Madras-2000(118) ELT 104. We consider it a fit case for remand. In these circumstances one appeal is remanded to the Commissioner of Central Excise for examining this issue i.e. the claim of the appellant for the benefit of not fn.no.281/86 and the excisability of the final product manufactured by them i.e. tar-bonded Dolomite bricks and pass appropriate order in accordance with law after giving the appellants a reasonable opportunity of personal hearing and examining the entire issue in terms of larger Bench decision.
4. We also note that a penalty of Rs.10,000/- (rupees ten thousand) has been imposed in respect of show cause notice dt.15.10.91. As the appellant was paying duty during the material period therefore there was no question of following the procedures set out under chapter 10 and therefore the imposition of penalty in the impugned order is set aside and the appeal is allowed.
Dictated in the court.