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Custom, Excise & Service Tax Tribunal

Noida Ii vs Indosolar Limited on 24 May, 2019

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
                    ALLAHABAD

                       REGIONAL BENCH - COURT NO.I

                        Excise Appeal No.70525 of 2017

  (Arising out of Order-in-Original No.69/COMMISSIONER/NOIDA-II/2016-17
  dated 31/03/2017 passed by Commissioner, Central Excise, Noida-II)



  Commissioner of Central Excise, Noida-II             .....Appellant


                              VERSUS

  M/s Indosolar Ltd.                                .....Respondent

3C/1, Eco Tech-II, Udyog Vihar, Greater Noida APPEARANCE:

Shri Sandeep Kumar Singh, Authorized Representative for Appellant Shri A.P. Mathur, Advocate for Respondent CORAM :

Hon'ble Mrs. ARCHANA WADHWA, MEMBER (JUDICIAL) Hon'ble Mr. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) DATE OF HEARING : 08 March, 2019 DATE OF PRONOUNCEMENT : 24 May, 2019 FINAL ORDER NO. 71049 / 2019 ARCHANA WADHWA Being aggrieved with the order passed by Commissioner of Central Excise, Noida vide which he had vacated the show cause notice issued to the respondents proposing confirmation of demand against them, Revenue has filed the present appeal.

2. We have heard learned AR, Shri Sandeep Kumar Singh appearing on behalf of the Revenue and learned advocate, Shri A.P. Mathur for the respondent.

3. As per the facts on record, the respondent M/s Indosolar Ltd are engaged in the manufacture of 'Photovoltaic Solar Cells' falling under Chapter 85 of the first Schedule to the Central Excise Tariff Act, 1985. The assessee is a 100% export oriented unit and procured the duty free raw material in terms of Notification No.52/2003- Cus dated 31 March, 2003. Similarly indigenous raw- material was procured by them without payment of duty in terms of Notification No.22/2003-CE dated 31 March, 2003. In terms of the said notification, if the goods are cleared in DTA without payment of duty the exemption under the above notifications for procurement at nil rate of duty shall not be available to the raw material/inputs used in the goods cleared in DTA without payment of duty.

4. The factory premises of the assessee was visited by the Anti-evasion Officers on 23 October, 2015 who conducted various checks and verifications. It was found that the said unit was clearing their goods in DTA without payment of duty and as such in terms of the provisions of the two notifications in question they were required to pay back the duty forgone by them. Accordingly, proceedings were initiated by them seeking denial of the benefit of the notification and proposing confirmation of demand to the extent of Rs.2.99 crores (Approx.) for the period 01 June, 2015 to 31 March, 2016. The said show cause notice raised against the respondents stands adjudicated by the Commissioner vide his impugned order vacating the same.

5. It is seen that while holding in favour of the assessee, the Adjudicating Authority has observed that raw material in question was otherwise also liable to nil rate of duty in terms of Notification No.24/2005-Cus and 12/2012-CE. As 3 Excise Appeal No.70525 of 2017 such he extended the benefit of the said notification to the respondents.

6. For better appreciation, we reproduce the relevant paragraph from the impugned order:-

5.16. Thus, in the instant case, I opine that the party could have imported or indigenously procured their raw material components or inputs etc. under these general Notification No.24/2005-Cus and 12/2012-CE without payment of duty instead of Not. No. 52/2003-Cus. and 22/2003-CE both dated 31.03.2003 as per the CBEC instructions vide F. No.DGEP/EOU/450/2006 dated 09.02.2007 and clarification dt.12.01.2014 & 01.02.2017. I find it relevant to mention that had it not been for clarifications of the Board dated 12.01.2014 and 01.02.2017, the party being a 100% EOU would not have apparently been eligible for the alternative benefit of the Notification No.24/2005-Cus and Notification No.12/2012-CE.

5.17 To cement my opinion expressed in Para 5.16 above, I also place reliance on the decision of the Hon'ble Supreme Court in the case of Collector of Central Excise Baroda V/s Indian Petro Chemicals, 1997 (92) ELT 13 (SC), wherein it was held by the Apex Court that if two alternative exemption notifications are available, the assesseee is entitled to that notification which is more beneficial to it. The purport of the said judgment was also relied upon and followed in the following cases, decided by the Hon'ble Supreme Court as also Allahabad High Court and the Tribunal:-

i) H.C.L. Limited V/s Collector of Customs, New Delhi, 2001 (130) ELT 405 (SC)

ii) Commissioner of Central Excise, Meerut V/s Modi Xerox Ltd., 2012 (275) ELT 406 (All.)

iii) World Wide Horticulture Ltd. and Sh. M.S. Puri, Chairman V/s Commissioner of Customs, Jaipur-I, 2005 (98) ECC 556 (Tri.)

iv) Commissioner of Customs, Chennai V/s Christian Medical College Hospital, 2007 (208) ELT 531 (Tri.-Chennai) 5.18 In terms of discussion any my findings in Para 5.17 above, I am of the view that the party was well within its rights to have claimed benefit of Notification No.24/2005-Cus and 12/2012-

C.E. in lieu of the benefit of Notification No.52/2003-Cus and Notification No.22/2003-CE, especially in light of the Board clarification dated 12.01.2014 and 01.02.2017 which have been discussed above.

5.19 Apart from the above, I also place reliance upon the Hon'ble Apex Court's decision in the case of Share Medical Care V/s Union of India, 2007 (209) ELT 321 (SC), wherein it was held by the Hon'ble Supreme Court that even if an applicant does not claim benefit under a particular notification at the initial stage, he is not debarred, not prohibited or estopped from claiming such benefit at a later stage. I also note that the ratio of the above Apex Court decision in Share Medical case (supra) was followed by the Hon'ble Tribunal in the case of Cipla Limited Vs Commissioner of Customs, Chennai, 2007 (218) ELT 547 (Tri.-Chennai), where in it was held that it was a settled law that the benefit of an exemption Notification can be claimed at appellate stage also following the ratio of the judgement of Share Medical case (supra). It is therefore even more clear that in the instant case, the benefit of alternative exemption notification of Notification No.12/2012- C.E. and Notification No.24/2005-Cus cannot be denied to the party, particularly in light of Board clarification dated 01.02.2017, since the said clarification allows benefits of these Notification to EOUs in addition to DTA units.

7. The Revenue's grievance in their memo of appeal is that the fact of availability of Alternate Exemption Notification No.24/2005-Cus and 12/2012-CE is not being disputed but as the appellant had not initially claimed the benefit of the said notifications and the imports were not imported under the claim of exemption in terms of the said notification, the subsequent claim is only a after though and misleading. The same is hypothetical to a state that they could have procured goods under general exemption notification whereas the fact remains that their procurement/import was specifically under Notification No.52/2003-Cus which was available only to 100% EOU.

8. We find no merits in the above contention of the Revenue. The Revenue is not disputing the fact that the import of raw material could have taken place under the cover of other two Notification No.24/2005-Cus and 5 Excise Appeal No.70525 of 2017 12/2012-CE. The Adjudicating Authority, before extending the benefit of the said two notifications to the respondents have referred to and relied upon the various decisions of the higher courts to hold that alternative pleas raised by an assessee are required to be considered. It is well settled law that if the benefit of the notifications is otherwise available to a assessee, even though not claimed at a time of the import of the goods, the benefit cannot be denied. As such, we find no merits in the Revenue's appeal, the same is accordingly rejected.

(Order Pronounced in the open Court on 24 May, 2019) Sd/-

(Archana Wadhwa) Member (Judicial) Sd/-

(Anil G. Shakkarwar) Member (Technical) Nihal