M/S. Jai Balaji Industries vs Commissioner Of Central Excise & ...

(ARISING OUT OF ORDER-IN-ORIGINAL NO.12-14/COMMR/BOL/08 DATED 04.11.2008 PASSED BY COMMISSIONER OF CENTRAL EXCISE, BOLPUR)

FOR APPROVAL AND SIGNATURES OF DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE 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. JAI BALAJI INDUSTRIES (FORMERLY SHRI RAMRUPAI BALAJI STEELS LTD.)

APPLICANT/APPELLANT VERSUS

COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, BOLPUR ...RESPONDENT

APPEARANCE:

SHRI K.K.ANAND, ADV. ASSISTED BY SHRI S.MAHAPATRA, GENERAL MANAGER (ACCOUNTS) FOR THE APPLICANT/APPELLANT;

SHRI S.SHARMA, A.R. (COMMR.) FOR THE REVENUE.

CORAM:

DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE TECHNICAL MEMBER

Date of Hearing & Decision:21.01.2015

ORDER NO.FO/A/75025/2015

Per Dr. D.M.Misra

This Application is filed seeking waiver of predeposit of duty of Rs.1,44,75,868/- and equal amount of penalty imposed under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002

2. At the outset, ld. Advocate for the Applicant submits that during the relevant period, May, 2006 to December, 2007, they had manufactured TMT Bars/Rods, which were captively used in the fabrication/manufacture of plant and machinery, inside their factory premises. He contends that they had availed the benefit of exemption Notification No.67/95-CE dated 16.03.1995 on the captive use/clearance of TMT Bars/Rods. The benefit of the said Notification was denied to them on the allegation that these TMT Bars/Rods since used in the manufacture of structurals, which do not satisfy the definition of Capital Goods. The ld. Advocate also submits that they had placed a Chartered Engineers Certificate showing that major portion of the manufactured TMT Bars/Rods were used in the fabrication/manufacture of plant and machinery, which are capital goods and a small portion/quantity was used in laying down the foundation, on which they had paid appropriate duty. He fairly accepts that the Chartered Engineers Certificate submitted earlier in support of their claim, reflected a consolidated quantity of TMT Bars/Rods used in the fabrication/manufacture of plant and machinery, without furnishing the break-up of the quantity of TMT Bars/Rods used in the respective plant and machinery. He also submits that after the adjudication proceeding, they had filed another Chartered Engineers Certificate dated 17.06.2010, wherein detailed break-up of the quantity of TMT bars/rods used in the respective plant & machinery has been indicated. He also submits that they had already deposited an amount of Rs.5.00 lakh and now makes an offer to deposit Rs.5.00 lakh more, and prays that the matter may be remanded to the ld. Commissioner for re-consideration of the evidences produced, in particular, the Chartered Engineers Certificate dated 17.06.2010.

3. Ld. AR for the Revenue reiterated the findings of the ld. Commissioner. He submits that the Chartered Engineers Certificate dated 17.06.2010 was not placed before the ld. Commissioner, therefore, the said Certificate needs to be scrutinized along with other evidences to ascertain the claim of the Applicant.

Hence, he has no objection in remanding the case.

4. After hearing both sides for some time, we find that the Appeal itself could be disposed off, at this stage. Accordingly, the Appeal is taken up for disposal, with the consent of both sides.

5. We find that undisputedly, the Appellant are engaged in the manufacture of TMT Bars/Rods, which they claim to have been used in the factory premises in the fabrication of plant and machinery. They have claimed exemption from payment of duty under Notification No.67/95-CE dated 16.03.1995, as amended. However, the said benefit was denied to them by the Department on the ground that the entire quantity of TMT Bars/Rods had been used in the factory premises for laying down the foundation/structural. We find that initially, the Chartered Engineers Certificate produced by the Appellant before the ld. Adjudicating Authority in support of their claim, does not disclose detail quantity-wise use of the TMT bars/rods in the respective plant and machinery. Prima facie, on going through the said Certificate, we find that it is vague and definitely difficult to verify the use of such TMT Bars/Rods in the respective plant, machinery, structural etc.., consequently, resulted in confirmation of the demand. Now, before this Tribunal, the Appellant had placed a Chartered Engineers Certificate dated 17.06.2010, furnishing the use of such TMT Bars/Rods in the respective plant and machinery. We find that since this Chartered Engineers Certificate was earlier not placed before the ld. Adjudicating Authority, hence, the same could not be verified by the Department. In the interest of justice, therefore, the contents of the Certificate and the claim of the Appellant, need to be verified vis-a-vis the allegations in the Demand Notice. Thus, the matter needs to be remanded to the ld. Commissioner for necessary verification of the said Certificate. At this stage, the offer to deposit Rs.5.00 lakh in addition to Rs.5.00 lakh already deposited, seems to be reasonable. Accordingly, the Appellant are directed to deposit Rs.5.00 lakh (Rupees five lakh) within eight weeks from the date of communication of this Order, and report compliance directly to the ld. Commissioner, who after recording compliance, would proceed with the matter afresh, taking into consideration all the evidences on record, that had been produced and would be produced by the Appellant, during the adjudication proceedings afresh. All issues are kept open. Needless to mention, a reasonable opportunity of hearing be granted to the Appellant. The Appeal is allowed by way of remand. Stay Petition disposed off.

(Dictated and pronounced in the open court.)

SD/-23.01.2015 SD/-23.01.2015 (I.P.LAL) (D.M.MISRA) TECHNICAL MEMBER JUDICIAL MEMBER

DUTTA/

4 E/A/97/2009

4