Custom, Excise & Service Tax Tribunal
M/S. Manikgarh Cement vs Commissioner Of Central Excise & ... on 9 March, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. E/1129/2011 (Arising out of Order-in-Appeal No. SR/311/NGP/2011 dt. 05.04.2011 passed by the Commissioner (Appeals) Central Excise & Customs, Nagpur) For approval and signature: Honble Shri Ramesh Nair, Member (Judicial) ======================================================
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 : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
======================================================
M/s. Manikgarh Cement
:
Appellant
VS
Commissioner of Central Excise & Customs, Nagpur
:
Respondent
Appearance
Ms. Shamita J. Patel, Advocate with
Shri J.C. Patel, Advocate for Appellant
Shri V.K. Shastri, Asstt. Commr. (A.R) for respondent
CORAM:
Honble Shri Ramesh Nair, Member (Judicial)
Date of hearing : 09/03/2016
Date of decision: 09/03/2016
ORDER NO.
The appeal is directed against Order-in-Appeal No. SR/311/NGP/2011 dt. 05.04.2011 passed by the Commissioner (Appeals) Central Excise & Customs, Nagpur, whereby the Ld. Commissioner upholding the Order-in-Original NO. 7/DEM/CND/10-11 dated 28/10/2010 rejected the appeal of the appellant and also upheld the imposition of penalty but reduced to Rs.2000/-.
2. The fact of the case is that the demand was made under Rule 6(3) (1) at the rate of 10% of the value of the goods supplied to M/s. Bajaj Holding & Investment Ltd. SEZ, on the ground that the M/s. Bajaj Holding & Investment Ltd. is not a SEZ Developers but it is a contractor, the adjudicating authority confirmed the demand and imposed penalty. The appeal filed by the appellant before the Commissioner (Appeals) was rejected only by reducing the penalty, therefore the appellant is before me.
3. Ms. Shamita J. Patel, Ls. Counsel along with Shri J.C. Patel, Ld. Advocate appearing for the appellant submits that the buyer of the goods M/s. Bajaj Holding & Investment Ltd. is an SEZ Developer. In this regard, she referred to letter issued by Director, SEZ Section, Department of Commerce dt. 30.1.2009, wherein the concerned department has confirmed that M/s. Bajaj Holding & Investment Ltd. is a developer of SEZ, therefore, entire basis of the demand does not sustain. She further submits that though it is undisputed that the appellant is a SEZ Developer even if it is presumed that they are contractor even then the facts remains that the goods remain SEZ suppliers only. She placed reliance on the case of Ultratech Cement Ltd. Vs. Commissioner of Central Excise, Nagpur 2015 (315) E.L.T. 238 (Tri.-Mumbai), wherein it was held that even the goods supplied to contractor of SEZ unit of SEZ developer, the provisions of Rule 6 regarding payment of 10% shall not apply.
4. On the other hand, Shri V.K. Shastri, Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order.
5. I have carefully considered the submissions made by both the sides. The lower authority has demanded the amount at the rate of 10% under Rule 6 of Cenvat Credit Rules, only on the ground that supplies made by the appellant to M/s. Bajaj Holding & Investment Ltd. is not to the SEZ Developer but to the contractor. Rrom the letter of the Department of Commerce, it is clear that the M/s. Bajaj Holding & Investment Ltd. is an SEZ Developer. Moreover, while making an allegation in the show cause notice that the appellant is contractor, no material evidence was adduced by the department that whether the M/s. Bajaj Holding & Investment Ltd. is contractor or SEZ Developer. This Tribunal in the case of Ultratech Cement Ltd. (supra) held that even if the buyer is contractor of SEZ unit or developer. Rule 6 of Cenvat Credit Rules cannot be made applicable for demanding 10% of the value of the goods supplied to SEZ. As per the above discussion, I am of the considered view that demand of 10% confirmed and upheld by the lower authorities is not sustainable. The impugned order is set aside and appeal is allowed.
(Pronounced & Dictated in court ) (Ramesh Nair) Member (Judicial) SM.
4Appeal No. E/1129/2011