M/S. J D Engineering vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. 205/CE/DLH/2013 dated 13/12/2013 passed by Commissioner of Central Excise (Appeals), New Delhi]

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

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. J D Engineering Appellants

Vs.

Commissioner of Central Excise Respondent

Delhi I

Appearance:

Shri Ravinder Singh, Advocate for the Appellants

Shri G R Singh, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 19.06.2015

ORDER NO. FO/ 52005/2015-Ex(SM)

Per Ashok Jindal :

The appellant is in appeal against the impugned order denying the benefit of notification No. 42/2001 CE (NT) dated 26.6.2001 on the premise that the appellant has failed to comply with the supplementary instructions issued by CBEC in respect of availment of exemption under Notification No. 42/2001 ibid.

2. The facts of the case are that appellant is registered with the department for production / clearance of excisable goods to domestic electrical appliances namely, juicer mixer grinder (JMG), food processor, mixer grinder and electric motors. The appellants are exporting excisable goods without payment of duty against exemption under Notification No. 42/01 ibid. Supplementary instructions were issued to Rule 19 of Central Excise Rules, 2002. The appellants filed letter of undertaking for export of goods without payment of duty but he was directed to furnish a bond as stated in supplementary instructions to Rule 19 of Central Excise Rules, 2002. The appellants did not produced that bond. Therefore, benefit of notification No. 42/01 was denied. Aggrieved from the said order, appellant is before me.

3. Learned Counsel for the appellant submits that the supplementary instructions under Rule 19 of Central Excise Rules, 2002 were issued by CBEC and same is not mandatory as there is no condition under Notification No. 42/01 ibid to comply with the said supplementary instructions to avail the benefit of said notification. Therefore, the supplementary instructions cannot bind the appellant for availing exemption. To support this contention, he relied on the decision of Honble Apex Court in the case of Sandur Micro Circuits Ltd. [2008 (229) ELT 641 (SC)] and Minwool Rock Fibres Ltd. [2012 (278) ELT 581 (SC]).

4. On the other hand, learned AR reiterated the finding of impugned order.

5. Heard the parties. Considered the submissions.

6. In this case, the short issue before me is whether the supplementary instruction issued by CBEC are mandatory for the appellant to comply with to avail benefit of notification No. 42/01 ibid. as held by Honble Apex Court in the case of Sandur Micro Circuits Ltd. (supra) wherein the Honble Apex Court has held as under:

5.?The issue relating to effectiveness of a Circular contrary to a Notification statutorily issued has been examined by this Court in several cases. A Circular cannot take away the effect of Notifications statutorily issued. In fact in certain cases it has been held that the Circular cannot whittle down the Exemption Notification and restrict the scope of the Exemption Notification or hit it down. In other words it was held that by issuing a circular a new condition thereby restricting the scope of the exemption or restricting or whittling it down cannot be imposed. The principle is applicable to the instant cases also, though the controversy is of different nature.

7. Further, in the case of Minwool Rock Fibres Ltd.(supra) also the Honble Apex Court held that departmental circular are not binding on the assessee, quasi judicial authorities and courts and therefore, in that view of the matter, circular /instructions issued by Board would not assist them. Admittedly, in the case of supplementary instructions which have been issued by CBEC and the notification No. 42/01 ibid both have been issued by Central Government and in the said notification there is no such condition. Therefore, appellant is not required to fulfill the condition imposed on him by way of supplementary instructions. In that view of the matter, I hold that appellant has complied with the conditions of the Notification (ibid). Therefore, appellant is entitled to avail exemption under said notification. Consequently, impugned order is set aside. Appeal is allowed with consequential relief.

(operative part of the order pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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