Custom, Excise & Service Tax Tribunal
Tata Steel Limited vs Commissioner Of Central Excise, Jsr on 11 May, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No.E/235/2007
(Arising out of Order-in-appeal No. 2/Commissioner/2007 dated 08.01.2007 passed by the Commissioner of Central Excise, Jamshedpur.
FOR APPROVAL AND SIGNATURE
HONBLE SHRI H.K.THAKUR, MEMBER (TECHNICAL)
HONBLE SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL)
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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
TATA STEEL LIMITED
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, JSR.
Respondent (s)
Appearance:
Shri Samir Chakraborty, Adv & Sh. Abhijit Biswas Adv, for the Appellant (s) Shri S. Musherjee, Suptd (AR), for the Revenue (s) CORAM:
Honble Shri H.K.Thakur, Member(Technical) Honble Shri P.K. Choudhary, Member (Judicial) Date of Hearing/Decision: 11.05.16 Date of Pronouncement: 11.05.16 ORDER No.FO/A/75402/16 Per Shri H.K.Thakur This appeal has been filed by the appellant against the quantification made by CCE & CUS Jamshedpur under OIO NO. 2/Commissioner/2007 dt 8/1/2007 as per order NO. A-396-398/KOL/06/ dt 25/5/2006 passed by this bench.
2. Dr. Samir Chakraborty (Advocate) & Sh. Abhijit Biswas (Advocate) appeared on behalf of the appellant. Learned Advocate Sh. Samir Chakraborty submitted that appellant ,interalia, claimed deduction of certain JPC levies ; consisting of Steel Development Fund (SDF) , Engineering Goods Export Assistance Fund (EGEAF) and GPC cess ; paid directly by the appellant to Joint Plant Committee (JPC) as per Notification dated 16/01/1992. & Notification S.O 1567/ESS/COMM/IRON & Steel dt 7/4/1971. That the deduction of the said JPC levies was denied by AC Central Excise, Dn.I, Jamshedpur as per orders-in-original No. 36/PL/93 dt 26/2/93 & 38/PL/93 dt 4/3/1993. The issue finally reached Supreme Court & Apex Court vide order dt 24/10/2002, reported as TISO Ltd Vs CCE [2002 146 (ELT) 3 (S.C), held as follows:-
The elements required to be added, as per the decision of the Joint Plant Committee (JPC), as notified by a notification dated 7th April 1971, as amended by the notification dated 16th January 2002, were not admissible deductions under section 4(4)(d)(ii) of the Central Excise Act, 1944 and as such, had to be included in determining the assessable values of the specified iron and steel products for the purpose of payment of Central Excise duty thereon. 2.1 Only with respect to correct quantification of duty, by including JPC levies into the assessable value, the matter was remanded by Apex Court to CESTAT & vide order NO. A-396-398/KOL/06 dt 25/5/06 CESTAT remanded the case to the Adjudicating authority to quantify the correct demand.
2.2 That appellant quantified duty liability at Rs. 6, 35, 26,796/- based on the remittances made by the appellant to JPC and paid the same as recorded in the Adjudication order. That no remittances, more then what has been intimated, have been received by the appellant, therefore, arbitrary calculation of JPC levies by the department based on periodical returns filed by the appellant is not justified. That JPC levies remitted by appellant are available at Pages 107 to 119 & Pages 133 to 144 of the paper book.
3. Sh. S. Mukherjee Supdt (AR) appearing on behalf of the Revenue made the bench go through a letter dt 8/8/2006 written by DC, CEx Dn-I, Jamshedpur to the appellant for giving the following details for arriving at the actual duty liability in respect of JPC levies.:-
(i) The basis for considering a major portion of product as Non-JPC category. A letter memo from JPC was to be produced which stated that only a certain minimum production was to b regarded as JPC category and that the rest would be Non-JPC category.
(ii) Wide variations are there in Tiscos quantity as compared to Departments. While the Departments Qty. Has has been taken from RT-12 figs., Tiscos basis is not known. List of RT-12 clearance figures has been provided to you for reconciliation and correction.
(iii) While arriving at the EGEAF and JPC cess, the rate of Rs. 300/- pmt and Rs. 3 pmt. Which is common for all articles to which it applies, does not appear to have been taken by Tisco. For some products it was not taken at all. This was to be corrected.
(iv) For the period April 94 to August 94 very few articles have been taken into consideration, while as per JPC minutes, it appears to apply to all articles mentioned in the Annexure II, III & IV to the minutes.
(v) For Chapter 86 goods there was no dispute and Tiscos figures matched with Department figs.
(vi) For Chapter 72 goods, during the period March 93 to April 93 also there appears to be no dispute as regards duty liability is concerned.
(vii) During the period March 92 to August 94, you had agreed to produce evidence of remittance made to JPC, which would b of great help in arriving at the correct duty liability.
3.1 Learned AR also relied upon the findings of Adjudicating authority in Para 8 to 10 of the OIO dt 8/1/07 to argue that duty demand worked out by the department is correct. Learned AR thus strongly defended the order passed by the Adjudicating authority & argued that no certificate from JPC has been produced to the effect as to how much JPC levies have been received by JPC from the appellant.
4. Heard both sides & perused the case records. The issue involved in the present proceedings is whether appellant has correctly calculated duty liability of Rs. 6,35,26,796/- based on remittances made to JPC or the duty liability should be Rs. 11,17,74,702/- as calculated by the Adjudicating authority. It is the case of the appellant that duty liability as per the judgement of Apex Court can be confirmed only on the amounts remitted by the appellant to JPC & periodical returns filed by the appellant with the department can not be made as the basis of calculating JPC levies.
4.1 It is observed from Parra 4 of the Minutes of Emergency meeting held by J.S. GOI on 16/1/92, read with Notification dt 16/1/1992 issued under clause 17 B of the Iron & Steel (Control) order 1956, that JPC may require from time to time that member Steel Plants may add the elements of levies to their ex-works prices of the notified items and to remit the same to the committee. As per the, above procedure prescribed all the member Steel Plants, including the present appellant were required to remit JPC levies to the Joint Plant Committee. Under this factual matrix department was not right in asking the appellant to provide certain information on production & clearances made or to calculate JPC levies from the figures available in the periodical RT-12 returns filed with the department. What is required to be added to the assessable value as per the judgement delivered by the Apex Court is the JPC levies remitted to the JPC. If there was any short payment of JPC levies then JPC could have asked the appellant to remit the same but department can not calculate a figure to add to the assessable value on their own based on RT-12 returns. Appellant has calculated on amount of Rs. 6,35,26,796/- based on remittances made to JPC based on certain receipts issued by JPC without supported by a chartered / cost accountant certificate. It is also observed from Para- 5 of Stay order No. S-381/Kol/08 dt 15/5/2008 passed by this bench that department had ample powers under the statute to Summon & Call for necessary documents and that in the absence of any documentary evidence, higher demand is prima facia not sustainable. At the same time appellant should have produced either a certificate from JPC to the effect as to how much JPC levies was remitted by the appellant during the relevant period or produce a chartered / cost accountant certificate indicating the basis of calculating duty liability of Rs. 6,35,26,796/-. For this purpose alone the matter is remanded back to the adjudicating authority as demand of Rs. 11, 17, 74,702/- calculated by the department is not sustainable. Needles to say that an opportunity of personal hearing should be extended to the appellant to substantiate their claim based on documents / certificate suggested above as to how much JPC levies have been remitted to JPC during the relevant period.
5. Appeal filed by the appellant is allowed by way of remand to the Adjudicating authority for deciding the issue of quantification of demand in the light of observations made in Para- 4.1 above.
6. Interest on the deferential duty paid / payable will be as per Para-2 of the order portion contained in OIO dt 8/1/07 passed by the Adjudications authority.
(Operative part of the order was pronounced in the open court.)
(H.K. THAKUR) (P.K. CHOUDHARY)
TECHNICAL MEMBER JUDICIAL MEMBER
Tushar Kumar
1 Appeal. No.E/235/2007