Andhra Data Form (P) Ltd vs Commissioner Of Central Excise ...
- CitationAppeal No. 33-2013 dated 22/07/2013 passed by Commissioner of Central Excise and Service Ta
Ratio decidendi
The rule this decision rests on
An assessee in a demand proceeding under the excise statute is entitled to contest, as an alternative plea, the classification of goods that bear on the quantum of the demand, even where that classification was not raised before the show-cause notice was issued and the original adjudicating authority declined to entertain it on that ground. Where a differential demand is raised against an assessee, the adjudicating process is to arrive at a fair conclusion, and the assessee is not precluded from challenging the classification of clearances that determine whether the demand can be sustained merely because it did not take that plea before the proceedings were initiated.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 33-2013 dated 22/07/2013 passed by Commissioner of Central Excise and Service Tax , VISAKHAPATNAM-I( Appeal) ]
For approval and signature:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 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
Andhra Data Form (p) Ltd 207/214, 'd' Block, Industrial Area, Autonagar VISAKHAPATNAM - 530012 AP Appellant(s)
Versus
Commissioner of Central Excise ,Customs and Service Tax Visakhapatnam-i CENTRAL EXCISE BUILDING PORT AREA VISAKHAPATNAM - 530035 ANDHRA PRADESH Respondent(s)
Appearance:
Shri G. Prabhakar Sastry, Advocate G.R. KUMAR & CO.
NO.9, MERRY LIFE APPARTMENTS, DOCTOR'S COLONY, PEDA WALTAIR, A.P VISAKHAPATNAM - 530017 ANDHRA PRADESH For the Appellant
Shri N. Jagdish, Superintendent(AR) For the Respondent
Date of Hearing: 10/09/2015
Date of Decision: 10/09/2015
CORAM:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER
Final Order No. 21900 / 2015
Per : ARCHANA WADHWA
After dispensing with the condition of predeposit of duty of Rs.4,29,762/-, we proceed to decide the appeal itself.
2. The appellant was engaged in the manufacture of printed paper which was classifiable under Chapter 49, attracting NIL rate of duty. They were also manufacturing computer stationery, which they were classifying under Chapter 48 and were clearing on payment of duty, after availing the SSI exemption benefit notification.
3. Revenue entertained a view that the appellant had cleared more computer stationery thus attracting the higher slab of SSI limit and not the one adopted by them for payment of duty. Accordingly, demand was raised against them. During the adjudication, the appellant took a plea that they were also clearing pre-printed stationery for LIC and other organizations on payment of duty which was wrong on their part inasmuch as the same was also classifiable under Chapter 49 and attracted NIL rate of duty. As such by excluding the clearances of the same, the clearances of the computer stationery would fall within that slab of SSI notification, which was being adopted by them.
4. The said plea of the assessee was not considered by the original adjudicating authority on the ground that the appellant had raised the issue of classification only after the demand proceedings have been initiated against them and as such he would not go into the said issue. He accordingly confirmed the demand.
5. On appeal, Commissioner(Appeals) observed that the assessee was within his rights to contest the classification of the printed material but did not remand the matter by observing that he has no powers to do so. Accordingly he upheld the order of the original adjudicating authority. However, he set aside the penalty imposed upon the assessee.
6. As such, we find that the sole issue required to be decided is as to whether the appellant was within his rights to raise alternative plea of classification issue of printed stationery as falling under Chapter 49, even though the said plea was not raised by them prior to issuance of the show-cause notice. The entire idea of adjudication is to come to a fair conclusion. Even if the appellant had adopted the classification of the said printed stationery as falling under Chapter 48 prior to the proceedings initiated against them, they were well within their rights to challenge the said classification when the proceedings were for differential demand, which was raised against them. As such, we agree with the learned Commissioner(Appeals) to that effect and set aside the order of the original adjudicating authority and remand the matter to him for considering of said submission of the appellant and to re-adjudicate the matter accordingly. Stay petition as also appeal get disposed of in above manner.
(Order pronounced and dictated in open court)
ASHOK KUMAR ARYA TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER
Raja.
4
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