M/S Kay Cee Processors vs Cce, Jalandhar

[Arising out of the Order-in-Appeal No. 259-60/CE/APPL/JAL/ 2006 dated 24/08/2006 passed by The Commissioner of Central Excise (Appeals), Jalandhar.]

For Approval and signature :

Honble Shri Ashok Jindal, Member (Judicial)

Honble Shri B. Ravichandran, Member (Technical)

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 would 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 :

Department Authorities?

M/s Kay Cee Processors Appellant

Versus

CCE, Jalandhar Respondent

Appearance

Shri Vector Das, Advocate  for the appellant.

Shri Govind Dixit, Authorized Representative (DR)  for the Respondent.

CORAM: Honble Shri Ashok Jindal, Member (Judicial)

Honble Shri B. Ravichandran, Member (Technical)

Final Order No. 52814/2015 Dated : 04/09/2015

Per. B. Ravichandran :-

The appellants are engaged in the manufacture of man made fabrics subjected to Central Excise levy and availed concession under Notification No. 14/2002-CE dated 01/03/2002  Sl. No. 4 and 16 readwith condition No. 5. Proceedings were initiated against them to deny exemption on the ground that the grey fabrics used by them for manufacture of processed fabrics has been subjected to NIL rate of duty. This cannot be considered as payment of appropriate amount of excise duty in view of Honble Supreme Courts decision in CCE, Vadodara vs. Dhiren Chemical Industries reported in 2002 (139) E.L.T. 3 (S.C.). The original authority as well as the appellate authority confirmed the demand. Aggrieved by the order of learned Commissioner (Appeals) the appellant is before us. In the appeal they have contended that the grey fabrics has been subjected to levy as appropriate duty leviable readwith any notification has been discharged. Further, the Explanation II in the notification clearly states on the presumption of duty paid nature of the product without production any document to that effect. They further submitted that the Honble Supreme Court order is not applicable to this case.

2. During the arguments the learned Counsel for appellant relied on this Tribunals decisions in the case of Arvind Products Ltd. vs. CCE & ST, Ahmedabad reported in 2014 (310) E.L.T. 515 (Tri.  LB) and Suditi Industries Ltd. vs. CCE, Belapur reported in 2013 (296) E.L.T. 368 (Tri.  Mumbai). Learned AR reiterated the findings of the lower authorities.

3. Heard both the sides and examined appeal records. The question for decision is whether or not the nil rate of excise duty for grey fabrics will disentitle the appellant to the concession for processed fabrics manufactured out of the same. The present demand arose after the Honble Supreme Courts decision in CCE, Vadodara vs. Dhiren Chemical Industries case (supra). It was held that payment of duty at nil rate cannot be treated as payment of appropriate rate of duty. We find cases of similar nature have been decided by this Tribunal considering the conditions in the Notification No. 14/2002-CE. The Tribunal in the case of Arvind Products Ltd. vs. CCE & ST, Ahmedabad (supra) held as follows :-

9. In view of the above observations we hold that decisions taken in the case of CCE, Ludhiana vs. Prem Industries (supra), Simplex Mills Co. vs. CCE (supra) and Morarjee Gokuldas Spg. & Wvg. Co. Limited vs. CCE (supra) were correct interpretation of exemption Notification No. 14/2002-CE dated 01/3/2002. Accordingly, benefit of Sr. No. 12 of Notification No. 14/2002-CE, will be admissible to the appellants by considering the fabric received for processing as deemed duty paid as per Explanation  II of Notification No. 14/2002-CE. Any other interpretation will make this explanation redundant. Further such a deemed fiction was not existing before the Honble Supreme Court while delivering judgment in the case of CCE vs. Dhiren Chemicals Limited (supra).

4. Further, in Suditi Industries Ltd. vs. CCE, Belapur (supra) the Tribunal examined the Honble Supreme Courts decision in Collector vs. Dhiren Chemicals Industries (supra) and held as follow :

11. We have examined the decision of the Apex Court in Dhiren Chemical Industries wherein the Honble Apex Court has interpreted on which appropriate duty of excise has already been paid and in this case the expression used in condition Nos. 1 and 3 is on which appropriate duty of excise leviable readwith any Notification for the time being in force has been paid under Notification 14/2002. The ratio of Dhiren Chemical Industries (supra) will not apply to the present case.

5. The Tribunal also relied on earlier decision in Simplex Mills Co. Ltd. vs. Commissioner reported in 2005 (189) E.L.T. 228 (Tribunal).

6. Considering the above position we find merit in appellants present appeal and accordingly allow the same setting aside the impugned order with consequential relief, if any.

(Operative part of the order pronounced in the open court.)

(Ashok Jindal)

Member (Judicial)

(B. Ravichandran)

Member (Technical)

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