Custom, Excise & Service Tax Tribunal
Cce, Chandigarh vs M/S Jcbl Ltd. Lalru, Derabassi on 3 November, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH-160017 DIVISION BENCH COURT NO.1 Appeal No. E/3010/2007 [Arising out of the Order-in-Appeal No. 220/CE/CHD/07 dated 29.06.07 passed by the CCE (Appeals), Chandigarh) Date of Hearing/Decision: 03.11.16 For Approval & signature: Honble Justice (Dr.) Satish Chandra, President Honble Mr. Devender Singh, Member (Technical) 1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3. Whether their Lordships wish to see the fair copy of the order? seen 4. Whether order is to be circulated to the Department Authorities? Yes CCE, Chandigarh Appellant Vs. M/s JCBL Ltd. Lalru, Derabassi Respondent
Appearance Shri G.M.Sharma, AR- for the appellant Shri B.L. Narasimhan, Advocate- for the respondent CORAM: Honble Justice (Dr.) Satish Chandra, President Honble Mr. Devender Singh, Member (Technical) FINAL ORDER NO. 61744/2016 Per Justice Dr. Satish Chandra The Revenue is in appeal against the impugned order dated 28.03.2007 passed by the Ld. Commissioner (A) in the appeal No. 220/CE/CHD/07 dated 29.06.07.
2. The brief facts of the case are as below :-
(i) The respondent is engaged in the job work of body building for motor vehicles of Chapter 8702, 8704 etc. The respondent receives non-duty paid chasis supplied by M/s Swaraj Mazda ltd. (hereinafter referred to as the manufacturer). The respondent manufactures seats classifiable under chapter heading 9401.
(ii) No Modvat credit is taken on the inputs used in the manufacture of the seats and are captively consumed while undertaking the job-work activity.
(iii) The department issued SCN dated 01.05.2001 denying the benefit of Notification no. 67/95-CE dated 16.03.1995 (hereinafter referred to as the 1995 Notification) as the motor vehicle cleared by the Respondent did not suffer any duty.
(iv) The Adjudicating Authority vide OiO dated 28.03.2007 confirmed the demand of duty on the seats by denying the benefit of the 1995 Notification. The Adjudicating Authority held that Respondent has not paid any excise duty as Notification No. 27/2002-NT dated 23.07.2002 had direct that any short payment made as a result of incorrect classification under Chapter heading 8702, 8703 or 8704 shall not be enforced. Therefore, the duty was not being paid.
(v) In appeal filed by respondent, the first appellate authority allowed the appeal.
3. Heard Sh. G.M. Sharma, the Ld. AR for the appellant and Sh. B.L. Narasimhan, the Ld. Counsel for the respondent.
4. After hearing both the sides, it appears that in the instant case M/s Swaraj Mazda Ltd. paid duty on body built motor vehicles and there is no loss of the revenue when the duty has been paid. The Ld. Advocate for the respondent has relied upon the earlier decision of this Tribunal in the case of CCE, Chandigarh-I vs. M/s Jay Cee Coach Builders Ltd., Final Order No. 470-473/02-B dt. 14.11.2001 in Appeal Nos. E/1697, 1698, 1761, 2296/2002-B. We find that the Commissioner in the Order-in-Appeal has observed as under:
From the records I find that the issue of demand of duty on the seats manufactured and consumed captively and the proposal to deny exemption from payment of duty on such seats under the aforesaid notification has not come up for the first time. This issue has been agitated in the past also as is evident from the order in Appeal No. 357/CE/CHD-I/01 dated 30.07.2001 and 84/CE/CHD-I/2002 dated 28.02.2002 passed by the Commissioner (A), Chandigarh who had allowed the benefit of notification no. 67/95-CE in the earlier cases of demand of duty on Seats in the appellants own case. These orders were assailed by the department before the CESTAT who vide final order no. 470-473/02/B dated 14.11.2002 had remanded the cases to the adjudicating authority with the observations as under:
If the movement of chasis and fabrication of body thereon is covered by the provision of Rule 57F(3)/(4), the question of payment of duty on seats will not arise as the manufacture of seat is part and parcel of the activity of fabrication of bus body and activity being covered by the provisions of Rule 57F(3)/(4), the question of payment of duty separately on seats would not arise. If the duty is held to be payable on the body built on the chasis, the proviso to notification no. 67/95-CE will not be attracted. In the denovo proceedings of the above CEGAT final order dated 14.11.2002, the proceedings were dropped by the adjudicating authority vide order in original no. 36-39/CE/ADC(P&V)/CHD/2004 dated 25.06.2004.
In view of the above, I find that M/s Swaraj Mazda Ltd. paid duty on the body built motor vehicles got manufactured on job work basis under Rule 57 AC from the appellant and therefore the appellant are eligible to avail exemption on the seats manufactured and consumed captively in the manufacture of such vehicles under notification no. 67/95-CE. The demand of duty therefore, on the seats does not sustain as the benefit of exemption under notification No. 67/95-CE is available.
5. On considering the fact that the issue is covered by the earlier decision of this Tribunal, and in the instant case of M/s Swaraj Mazda Ltd, the duty on the body built motor vehicles was paid by the respondent and there is no loss of the revenue when the duty has been paid, therefore, there is no infirmity in the impugned order. The same is upheld.
6. The appeal filed by the Revenue is dismissed.
(Dictated and pronounced in the open court)
(Devender Singh) (Justice Dr. Satish Chandra)
Member (Technical) President
RT
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E/3010/2007
CCE, Chandigarh Vs. JCBL Ltd.