M/S. Inox India Limited vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIO-06-DEM-VAPI-2011 dated 22.03.2011, passed by Commissioner Central Excise, Service Tax & Customs, Vapi)

M/s. Inox India Limited : Appellant (s)

VERSUS

Commissioner of Central Excise & S.T., Vapi : Respondent (s)

Represented by :

For Appellant (s) : Shri J.C. Patel, Advocate For Respondent (s) : Shri Jeetesh Nagori, Authorised Representative

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. H.K. Thakur, Hon'ble Member (Technical)

1 Whether Press Reporter 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 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

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. H.K. Thakur, Hon'ble Member (Technical)

Date of Hearing / Decision : 19.05.2015

ORDER No. A/10612/2015 Dated 19.05.2015

Per : Mr. P.K. Das;

The relevant facts of the case, in brief, are that the appellant a 100% EOU, engaged in the manufacture of Disposable Gas Cylinders. During the course of audit, it was found that the appellant had cleared their final products to one buyer namely M/s. Gujarat Flurochemicals Limited against advance Licence/ Advance Release Orders and availed exemption benefit under Notification 23/2003-CE dated 31.3.2003. A show cause notice dated 18.03.2010 was issued proposing demand of Central Excise duty alongwith interest and to impose penalty on the ground that the appellant has cleared goods in violation of conditions of exemption notification. Adjudicating authority confirmed demand of duty alongwith interest and imposed penalty.

2. The Learned Advocate on behalf of the appellant submits that show cause notice was issued on the ground that appellant had been clearing their finished goods in DTA without payment of Central Excise duty on the basis of Advance Licence in terms of Para 6.8 (a) of Foreign Trade Policy availing the benefit of vide Serial No. 22 of Notification No. 23/2003-CE dated 31.3.2003, till amendment vide Notification 28/2005-CE dated 20.05.2005, by which there is requirement of Advance Release Order to be produced by the Advance Licence holder to the appropriate Central Excise and Customs officer. The allegation is that they have produced Advance Release Order instead of Advance Licence. He submits that adjudicating authority proceeded on a different ground in so far as that appellant has failed to produce the original advance Licence specifying the quantity, description and value of the goods cleared by them. He submits that the appellant produced Advance Release Order and copy of the Advance Licence. It is his submission that copy of the Advance Licence would show the amount has already been debited by the jurisdictional Central Excise officer. He drew the attention of the Bench copies of the Advance Licences containing in the memorandum of appeal, with debit sheet.

3. The Learned Authorised Representative for the Revenue drew the attention of the Bench, relevant portion of the adjudication order. He submits that appellant had not produced original Advance Licence duly debited quantity/ value of the goods cleared by them. The condition of the exemption notification is that appellant would produce Advance Licence duly debited before the proper officer.

4. After hearing both the sides and on perusal of the records, we find that the appellant submitted copy of Advance Licence, duly debited by the Central Excise officers. Appellant had cleared the goods against Advance licence and contention of the learned Advocate is that appellant produced copy of the Advance Licence and the original is lying with M/s. Gujarat Flurochemicals Limited and the department may verify at their end. We find force in the submission of the learned Advocate. In our considered view, as the appellant produced copy of the Advance Licence duly debited the quantity and value of the goods cleared by them and it would be proper that the jurisdictional Central Excise officer should verify at their end.

5. In view of the above discussion, we set-aside the impugned order and the matter is remanded to the adjudicating authority to decide afresh after examining the advance licence at the buyers end if necessary. Learned Advocate undertakes to cooperate with the adjudicating authority in de-novo proceedings. Needless to say that the adjudicating authority shall give proper opportunity of hearing before passing an order.

Appeal is allowed by way of remand.

(Dictated and pronounced in the Court)

(H.K. Thakur) (P.K. Das) Member (Technical) Member (Judicial) ..KL

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