Advanced Composites Pvt. Ltd vs Commissioner Of Central Excise, Goa

(Arising out of Order-in-Appeal No. GOA/CEX/SNS/2005 dated 27.5.2005 passed by Commissioner of Central Excise (Appeals), Goa)

For approval and signature:

Honble Mr. P.K. Jain, Member (Technical) and Honble Mr. S.S. Garg, Member (Judicial)

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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 : Seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

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Advanced Composites Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Goa Respondent

Appearance: Shri Shrikant V. Gaonkar, Company Secretary, for appellant Shri V.K. Shastri, Assistant Commissioner (AR), for respondent

CORAM: Honble Mr. P.K. Jain, Member (Technical) Honble Mr. S.S. Garg, Member (Judicial)

Date of Hearing: 26.8.2015 Date of Decision: 7.9.2015

ORDER NO

Per: P.K. Jain

Brief facts of the case are that the appellant is manufacturing goods which are falling under Chapter Heading 9306.00 of the Central Excise Tariff. They were availing the benefit of SSI exemption notification. In 2001, the SSI exemption was amended so as to exclude the goods falling under Chapter 93. The appellant continued to take the benefit of SSI notification. Later on, the department pointed out to them and they in turn took up the matter with the Ministry and after some time the Government issued a Notification No.47/2001-CE dated 1st October 2001, wherein the Notification No.8/2001-CE dated 1st March 2001 was amended so as to exclude the parts falling under Heading 93.06 or 93.07. They thereafter became eligible for the benefit of the SSI exemption notification. The present dispute relates to the period from 1st July 2001 to 30th September 2001.

2. Shri Shrikant V. Gaonkar, Company Secretary, appeared on behalf of the appellant. He submitted that in 2001 when the items of Chapter 93 were excluded from the scope of SSI exemption, the Finance Ministers speech talked of such goods meant for private use. Since they were supplying parts to the Government Undertaking, Bharat Dynamics Ltd., which in turn were used for supplies to the Ministry of Defence, Government of India, and not for private use, they are eligible for the benefit of the said notification. He further submitted that the said amendment in the Notification should be construed as clarificatory in nature and should be given retrospective effect. It was further submitted that in the alternative, they may be extended the benefit of Notification No.9/2001 which is also applicable to SSI units wherein they are permitted to avail the benefit of SSI notification with cenvat credit.

3. Learned AR reiterated the findings of the impugned order.

4. We have considered the submissions of both the sides. There is no dispute that vide Notification No. 8/2001 dated 1.3.2001, w.e.f. 1.4.2001 the goods falling under Chapter 93 were excluded from the scope of SSI benefit. It is also not disputed that the goods produced by the appellant are classifiable under Chapter 93. Their goods are, therefore, not eligible for the benefit of Notification No. 8/2001 from 1.4.2000 onwards. The SSI Notification No.8/2001 was amended vide Notification No.47/2001-CE dated 1st October 2001. By the said amendment, parts falling under Heading 93.06 or 93.07 were again made eligible for the benefit of the SSI exemption. However, the said exemption notification was not made with retrospective effect but was to come in force from 1st October 2001 only.

5. In view of the above legal position, during the period from 1.4.2001 to 30.9.2001, the appellant was not eligible for the benefit of Notification No.8/2001-CE dated 1.3.2001. The appellant has contended about the speech of the Finance Minister. We find that in the notification issued by the Government, there is no such mention that only parts which are meant for private use will get excluded. Even after the amendment on 1st October, there is no concept of use by the private person or by the Defence. Under these circumstances, we do not find any force in the argument of the appellant.

6. The appellant has also made a plea that the benefit of Notification No.9/2001 may be extended to them. We find that the scope of Notification 9/2001 is exactly the same as that of Notification 8/2001. If the benefit of Notification 8/2001 was not available, the benefit of Notification 9/2001 can also not be extended.

7. Under the circumstances, we do not find any merit in the appeal and the appeal is dismissed.

(Pronounced in Court on 7.9.2015)

(S.S. Garg) Member (Judicial) (P.K. Jain) Member (Technical)

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