Commissioner Of Central Excise vs Blow Plast Ltd

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

Appeal No.E/24/2005

[Arising out of Order-in-Appeal No.59/2004-TRY (ADK) dt. 30.9.2004 passed by the Commissioner of Customs & Central Excise (Appeals), Tiruchirapalli]

Commissioner of Central Excise, Tiruchirapalli Appellant

Versus

Blow Plast Ltd. Respondent

Appearance:

Ms. Indira Sisupal, AC (AR) For the Appellant

None For the Respondent

CORAM :

Honble Shri R. Periasami, Technical Member Honble Shri P.K. Choudhary, Judicial Member

Date of Hearing/Decision : 7.9.2015

FINAL ORDER No.41154/2015

Per R. Periasami

Revenue filed appeal against the Commissioner (Appeals) order dt. 30/09/2004. The appeal relates to demand of excise duty on office furniture systems / work stations manufactured and cleared without payment of duty. Based on the DGCEI investigation, a show cause notice dt. 8.3.2001 was issued by the Additional Director, DGCEI, Chennai demanding excise duty of Rs.16,842/-. The adjudicating authority in his order confirmed the duty and also imposed equivalent penalty along with interest.

2. On appeal by the respondent, Commissioner (Appeals) in the impugned order has set aside the adjudication order and allowed the respondent's appeal. Hence Revenue filed the present appeal.

3. This case was posted on several occasions for final hearing on 16.1.2014, 21.8.2014, 4.12.2014, 16.2.2015, 28.4.2015 and 23.6.2015 where none appeared on behalf of the respondents nor any cross appeal filed against Revenue's appeal. Since the appeal pertains to the year 2005, appeal is taken up for hearing and disposal on merits.

4. Ld. A.R for the Revenue reiterated the grounds of appeal and also reiterated the findings at para-11 and para 26 of OIO. She submits that respondents have never disputed the fact of manufacture of furniture/work stations which are assembled at customers premises. She relied on the following decisions :-

(i) CCE Visakhapatnam Vs Mehta & Co.

2011 (264) ELT 481 (SC)

(ii) Craft Interiors Pvt. Ltd. Vs CCE Bangalore 2006 (203) ELT 529 (SC)

5. After hearing the Ld. A.R and on perusal of grounds of appeal, we find that the impugned order of Commissioner (Appeals) has set aside the adjudication order by relying Hon'ble Supreme Court decision in the case of Thermax Ltd. Vs CCE decision 1998 (99) ELT 481 ((SC) and PSI Data System Ltd. Vs CCE 1997 (68) ECR 377. We find that respondents have not disputed the manufacture of office furniture and work stations. Appellants carried out assembly and installation and discharged excise duty. The Hon'ble Supreme Court in the case of CCE Visakhapatnam Vs Mehta & Co.(supra) by relying their order in the case of Craft Interiors Pvt. Ltd. clearly held that office furniture, table, chairs are not treatable as immovable property and allowed the Revenue's appeal. The relevant paragraphs of the Supreme Court's decision are reproduced as under:-

"25.?So far as the second issue is concerned, we fail to appreciate as to how the Tribunal could come to a finding, as recorded in the impugned judgment and order in view of the proposition of law already settled by this Court in the decision of Craft Interiors (supra).

26.?The decision in Craft Interiors (supra) has clearly laid down that ordinarily furniture refers to moveable items such as desk, tables, chairs required for use or ornamentation in a house or office. So, therefore, the furniture could not have been held to be immoveable property.

27.?A perusal of the records would also indicate that the Commissioner in his order has listed out various items which were held as furniture and while doing so, he has scrutinized the records to determine the immovability or movability of the items. A bare perusal of the said order would also indicate that he has given deductions for the items held as immovable. He has prepared Annexures 1, 2, 3 and 4 and the items mentioned in Annexures 1 and 2 have been held as furniture after proper examination of the records whereas he has held items in Annexures 3 and 4 as immovable and has allowed deduction.

28.?So far as the items such as chairs, tables etc. listed in Annexure 5 is concerned, the same admitted to be furniture by the assessee himself. The Commissioner having considered the aforesaid issue carefully and after proper scrutiny, the Tribunal was not justified in rejecting the said findings by mere conclusion and without trying to meet the findings recorded by the Commissioner.

29.?Accordingly, we allow this appeal and set aside the order passed by the Tribunal and restore the order passed by the Commissioner. However, there shall be no order as to costs."

In the present case, the respondents failed to justify that the items are immovable property and also we find that respondents have not filed any cross objection against Revenue's appeal or any submission before this Tribunal. Therefore, by respectfully following Supreme Court's decision, we set aside the impugned order and restore the OIO dt. 28.9.2001 confirming duty and penalty. Accordingly, Revenue's appeal is allowed.

(Dictated and pronounced in open court)

(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER

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