Custom, Excise & Service Tax Tribunal
M/S. Godrej Agrovet Ltd vs Commissioner Of Central Excise on 8 October, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, COURT NO. III Excise Appeal No. 56191 -56207 of 2013 - EX[DB] Excise Stay Application No. 56646 - 56662 of 2013 [Arising out of Order-In-Original No. 200-216/CE/Appl/CHD-II(J&K)/2012 dated 4.12.2012 passed by Commissioner of Central Excise (Appeals), Chandigarh II ] For approval and signature: Honble Ms. Archana Wadhwa, Member (Judicial) Honble Mr. Manmohan Singh, Member (Technical) 1 Whether Press Reporters may be allowed to see 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes M/s. Godrej Agrovet Ltd. Appellants Vs. Commissioner of Central Excise, Respondent
Jammu Appearance:
Shri B.L. Narasimhan, Advocate for the Appellants Ms. Shweta Bector, DR for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Hon'ble Mr. Manmohan Singh, Member (Technical) Date of Hearing /decision: 8.10.2013 ORDER NO. FO/ 57954-57970 /2013-EX(BR) Per Archana Wadhwa (for the Bench):
All the matters are being disposed of by a common order as they arise out of same impugned order of Commissioner (Appeals) though there are separate order in originals.
2. After hearing both sides, we find that dispute in the present appeal relates to the correct classification of the appellant s product Vipul Booster. The said product was being cleared by the appellant by classifying the same under tariff heading 3808 9340 attracting 8% rate of duty. Inasmuch as the said product was specified under section 4A of Central Excise Act, the appellants were discharging duty on the basis of MRP after availing approximately abatement of 25%.
2. The appellant was a unit located in area of Jammu and Kashmir and working under exemption notification No. 56/2002 which provides the assessee to pay duty on their final product out of Cenvat credit as also on out of PLA and subsequent to claim self credit of duty paid out of PLA, the appellant were taking credit of such duty paid through their PLA account. Subsequently, the refund claim were being filed by them in terms of said notification and the same were filed by them. At the time of disposal of refund claim, the jurisdictional Central Excise officer entertained a view that the appellants product are not correctly classifiable under tariff heading 3808 9340, but the same are correctly classifiable as fertilizer as under Chapter heading 31.01 which attracted nil rate of duty. As such, proceedings were initiated against the appellant for denial of self credit. Accordingly, refund claim filed by the appellant were rejected by the original adjudicating authority.
3. The said order of the original adjudicating authority was challenged by the appellant before Commissioner (Appeals), who vide his present impugned order agreed with the appellant that the product in question cannot be held to be fertilizer classifiable under Chapter heading 31.01. However, he also disagreed with the appellant that the product is a plant growth regulator falling under tariff heading 3808 9340. He opined that the goods are properly classifiable as insecticides which are classifiable under 3808 9199. However, he further observed that inasmuch as the said tariff entry was not before the original adjudicating authority and he has no power to remand, he has no option but to agree with the order of learned Commissioner (Appeals). Accordingly, he rejected the appeals. Hence the present appeals along with stay petitions.
4. We find that total self credit taken by the appellant in all these appeals is to the tune of 4,18,80,002/-. The said amount is inclusive of duty as also the education cess and secondary higher education cess. The appellants have already reversed the amount of Rs.27,08,233/- which includes the education cess and secondary higher education cess of Rs.12,81,201/-. As such, we dispense with the condition of pre-deposit of balance amount and proceed to decide the appeals itself for the reasons recorded in the subsequent paragraphs.
5. As per the detailed scenario specified in the preceding paragraphs the dispute relates to correct classification of the appellants product Vipul Booster. The appellants have classified the same as plant growth regulator, whereas Assistant Commissioner has classified it as fertilizer and Commissioner (Appeals) has opined the classification of the same as insecticides. We find that there is no difference under rate of duty applicable to plant growth regulator or insecticides except the quantum of abatement which is 25% in plant growth regular and 30% in insecticides.
6. However, both sides agree that third contending entry of the insecticides was not the subject matter of the proceedings before the original adjudicating authority and as such, neither the appellant nor the original adjudicating authority has advanced their opinion in respect of the same. As such, both sides agree that matter be remanded to the Assistant Commissioner for consideration of classification under heading of insecticides.
7. In view of the above, we set aside the impugned order and remand the matter to the original adjudicating authority for examining the entry 3808 9199 relating to insecticides. We make it clear that we have not expressed any opinion on the classification of the product and the appellant as well as Commissioner has to take into consideration the relevant classification, relevant entry, precedent decision & technical data for deciding the classification of the product.
8. The stay petitions as also appeals get disposed of in the above manner.
(Dictated and Pronounced in the open court )
( Archana Wadhwa ) Member(Judicial)
(Manmohan Singh) Member(Technical)
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