M/S Garden Silk Mills vs Commissioner, Central Excise & Service ...

Appeal No.E/840-844/2010-DB, E/13616/2014; E/EH/16628/2014 [Arising out of OIO No.55/Dem/2009, dt.27.02.2010, OIO No.SUR-EXCUS-001-COM-024-14-15, dt.07.08.2014, passed by Commissioner of Central Excise & Service Tax, Surat]

1. M/s Garden Silk Mills 2. Shri Deepak Marathe Appellants

Vs

Commissioner, Central Excise & Service Tax, Surat-I Respondent

Represented by:

For Appellant: Shri Willingdon Christian, Advocate For Respondent: Dr. J. Nagori, Authorised Representative

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)

1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of Seen the order?

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

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)

Date of Hearing/Decision:01.07.2015

Order No.A/10935-10940/2015, dt.01.07.2015

Per: P.K. Das

A common issue is involved in these appeals and therefore, all are taken up together for disposal.

2. The Appellants were engaged in the manufacture of Partially Oriented Yarn (POY), Draw Twisted Polyester Filament Yarn (D.T.), Draw Wound Polyester Filament Yarn, Textured Polyester Filament Yarn, Grey MMF, classifiable under Chapter 54 of the Schedule to the Central Excise Tariff Act, 1985. They were availing CENVAT Credit of the duty paid on the specified inputs and capital goods. It has been held that the Appellants had contravened the provisions of Rule 4(1), 6 & 9 of Central Excise Rules, 2002 as they had failed to discharge the duty liability correctly on clearance, failed to observe the condition of registration rules and wrongly availed the benefit of exemption Notification No.30/2004-CE, dt.09.07.2004 as amended.

3. The learned Advocate submits that the Tribunal has decided the issue in their favour, in their own case as reported in 2015 (317) ELT 382 (Tri-Ahmd) (Bhilosa Industries Pvt.Ltd. Vs CCE Vapi).

4. The learned Authorised Representative appearing on behalf of the Revenue reiterates the findings of the Adjudicating authority.

5. We find that the issue is no more res integra in view of the decision of the Tribunal in the case of Bhilosa Industries Pvt.Ltd. (supra). The relevant portion of the said decision is reproduced below:-

7.?There are mainly three issues required to be deliberated in these appeals :-

(i) Whether the appellants are eligible to the benefit of exemption under Sr. No. 6 of the Notification No. 30/2004-C.E., dated 9-7-2004, as amended, when the appellants are having more than one factories and also have the facilities of manufacturing POY in a factory other than the factory of the appellants where the benefit of Notification No. 30/2004-C.E., dated 9-7-2004 is being availed?

(ii) Whether extended period is invokable in these proceedings in view of facts & circumstances available on record?

(iii) Whether penalties are required to be imposed upon the appellants in these proceedings?

... ... ...

9.2?It is observed from the case records that following expressions have been used in the description column of Table to Notification No. 30/2004-C.E. as amended, against Sr. No. 6

(a) Yarns procured from outside

(b) Subjected to any process by the manufacturer

(c) Who does not have the facilities in his factory for the manufacture of filament yarns of Chapter 54 All the above three expressions used in Notification No. 30/2004-C.E. have been interpreted differently by the Revenue and the appellants. According to Revenue, the yarns should be purchased by the manufacturer from outside. Further, revenue is also of the view that the word manufacturer used in Notification No. 30/2004-C.E. should be interpreted manufacturer as a legal entity and that the words in his factory should include all the factories of the manufacturer as a legal entity. Appellants on the other hand argued that words procured from outside used in the notification means that the yarn should have been obtained (whether purchased or not) from outside and the word manufacture should be the same factory/assessee to whom demand is issued. That accordingly the expression in his factory should be treated as the same factory.

5. In view of the above discussion and following the decision of the Tribunal in the case of Bhilosa Industries Pvt.Ltd. (supra), we set aside the impugned order. All the appeals are allowed. The application for early hearing of the appeal is dismissed as infructuous.

(Dictated & Pronounced in Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)

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