Custom, Excise & Service Tax Tribunal
Vidyut Metallics Pvt. Ltd vs Cce Mumbai Iii on 10 February, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT NO. II
APPLICATION NO. E/S/2066/10
IN APPEAL NO. E/1923/10 Mum
(Arising out of Order-in-Appeal No. PKS/285/BEL/2010 dated 23.08.2010 passed by the Commissioner of Central Excise (Appeals), Mumbai III.)
For approval and signature:
Honble Shri Ashok Jindal, 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 :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Yes
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
Vidyut Metallics Pvt. Ltd.
:
Appellant
Versus
CCE Mumbai III
Respondent
Appearance Shri Prakash Shah, Advocate for Appellants Shri V.K. Agarwal, Addl. Commissioner (A.R.) for Respondents CORAM:
Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 10.02.2012 Date of Decision : 10.02.2012 ORDER NO.
Per : Ashok Jindal A demand of interest of Rs.92,791/- has been confirmed against the appellant on delayed payment. As the issue involved is in a narrow compass, therefore, after waiving the requirement of pre-deposit of interest, the appeal is taken up for disposal.
2. The facts of the case are that the appellants are clearing goods to their sister concern. On scrutiny of records, it was found that the appellant has paid duty on these clearances. As the said clearances do not relate to transactions amounting to sale those were clearance for captive consumption, the assessable value declared was purportedly worked out on the basis of costing as per provisions of Section 4 of Central Excise Act, 1944. Therefore, a show-cause notice was issued demanding differential duty along with interest. The period involved is April 2003-04 and the show-cause notice issued on 29.04.2008.
3. The contention of the appellant is that whatever the duty they paid, they are entitled for the credit, therefore the question of interest does not arise. They also relied on the decision of CCE & Cus., Vadodara II vs. Indeos ABS Ltd. - 2010 (254) ELT 624 (Guj). He also contended that the demand of interest is barred by limitation.
4. Heard the learned Counsel and perused the records.
5. In the case of Indeos Abs Ltd. (supra), the Honble High Court of Gujarat held that when the goods are cleared to their sister concern, whatever duty payable by the assessee the same is available as credit to its own unit (sister concern) and hence the entire exercise was revenue neutral and duty is not payable.
6. The case before me is not a case whether duty is payable or not. Admittedly the case in hand, the appellant has admitted their duty liability and paid thereof. Therefore, following the decision of Honble Apex Court decision in the case SKF India Ltd 2009 (239) ELT 385 (S.C.) wherein the apex court held whenever duty liability has been admitted and paid, interest is payable. Therefore, I do not find any merit in the appeal but I find the show-cause notice has been issued by invoking the extended period of limitation. As it is not a case of suppression, therefore, the appellant succeed on limitation as show-cause notice has been issued beyond the normal period of limitation. Accordingly the appeal is allowed. Stay application is also disposed of.
(Dictated in Court) (Ashok Jindal) Member (Judicial) nsk 3