M/S. Essess Eltech Systems Pvt. Ltd vs Commissioner Of Customs, Central ...
- CitationAppeal No. 03/2013
Ratio decidendi
The rule this decision rests on
Under Notification No. 3/2004-CE dated 8.1.2004, the conditions for the exemption are that the goods are cleared for the intended use specified in the Notification and that a certificate from the District Collector of the district is produced to the Assistant Commissioner of Central Excise; the Notification contains no requirement that the supply be made directly to the project by the manufacturer or vendor, so a claim cannot be rejected merely because the claimant supplied as a sub-vendor. Where the dispute turns on the interpretation of a notification, which requires detailed consideration of the notification and the relevant case law, the appellate authority may dispense with the requirement of pre-deposit of 50% of the tax demanded as a condition for hearing the appeal, and it should be heard without insisting on any pre-deposit.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 03/2013 (h-IV) CE dated 10/01/2013 passed by Commissioner of Central Excise, HYDERABAD-IV ]
For approval and signature:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, 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?
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?
4 Whether Order is to be circulated to the Departmental authorities?
M/s. Essess Eltech Systems Pvt. Ltd Plot No. 99, Phase V , IDA Jeedimetla HYDERABAD - 500055 AP Appellant(s)
Versus
Commissioner of Customs, Central Excise and Service Tax HYDERABAD-IV POSNETT BHAWAN, TILAK ROAD, RAMKOTI, HYDERABAD 500 001. ANDHRA PRADESH Respondent(s)
Appearance:
None (written submissions) K. NAGARAJA RAO PLOT NO.41, INDIRANAGAR VIJAYANAGAR COLONY, HYDERABAD-500 057 For the Appellant
Dr. A. K. Nigam, Addl. Commissioner (AR) For the Respondent
Date of Hearing: 18/02/2015
Date of Decision: 18/02/2015
CORAM:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
Final Order No. 21030 / 2015
Per : B.S.V.MURTHY
The issue involved is whether the appellant is eligible for exemption available to all goods supplied for water supply projects. The claim for exemption under Notification No.3/2004-CE dated 8.1.2004 has been rejected on the ground that appellant had been supplying the goods in the role of sub vendor. The appeal has been dismissed on the ground that appellant did not make pre-deposit as per the stay order requiring them to deposit 50% of the tax demanded. The modification application filed by them was rejected.
2. Nobody is present on behalf of the appellant. However, written submissions have been received. It was submitted that appellants are in financial distress since there is negative bank balance of Rs.70,51,565/-. Further, the department had been informed of the project supply orders with the copy of the certificate of the District Collector indicating as one of the suppliers of relay panels. Part of the demand is also time barred. The electric panels were supplied by them for lift irrigation system for Government of Andhra Pradesh. In the certificate issued by the District Collector, the main contractors name as well as suppliers of other items and equipments for the project. It was submitted that the original authoritys finding that IVRCL was successful bidders and other were subcontractors and bidders and only supplies made to them would be eligible for the benefit and not to other parties, was not correct.
3. After going through the written submissions and after hearing the learned AR who supports the adjudication order, we find that in the Notification No.3/2004 dated 8.1.2004, the condition required to be fulfilled are the goods to be cleared for the intended use mentioned in the Notification and a certificate by the District Collector of the District is produced to the Assistant Commissioner of Central Excise. There is no mention of direct supplies to the projects by the vendor in the Notification. Under the circumstances, prima facie, we find that the requirement of pre-deposit to hear the appeal to the extent of 50% of tax demanded is not necessary and appeal could have been heard without insisting on any pre-deposit. This is because the question involved is interpretation of Notification and requires a detailed consideration of the Notification, case laws relating to the issue. Therefore, we allow the stay application and dispose of the appeal itself at this stage. Accordingly, we set aside the impugned order and remand the matter to the Commissioner (A) with a direction to decide the matter afresh without insisting on any pre-deposit.
(Order pronounced in open court)
B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER
rv 3
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free