M/S Polysil Pipes vs Commissioner Of Central Excise &
- CitationAppeal No. : E/10208/2013
Ratio decidendi
The rule this decision rests on
The amendment to Rule 6(6) of the Cenvat Credit Rules 2004 (effective 31.12.2008), which makes credit available to a unit in respect of clearances to SEZ developers, operates retrospectively and therefore covers the appellant's period of clearances; the 10% liability under the pre-amendment position does not survive it. Where a High Court has construed an amendment to a rule and held it retrospective, that construction binds the Tribunal in the absence of any contrary High Court decision brought forward by the Revenue; the Tribunal may not instead determine the legislative intention afresh on the basis of other case law which the first appellate authority preferred.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of OrderIn-Appeal No.SRP100VAPI2012-13 Dated 01.11.2012 Passed by Commissioner Of Central Excise-VAPI)
M/s Polysil Pipes : Appellant (s) VERSUS
Commissioner of Central Excise & Service Tax-Vapi : Respondent (s)
Represented by :
For Appellant (s) : Shri. Anand Mishra, Advocate For Respondent (s): Shri. S. Shukala, Authorised Representative
For approval and signature :
Mr. H.K. Thakur, Honble 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. H.K. Thakur, Honble Member (Technical)
Date of Hearing / Decision : 27.07.2015
ORDER No. A/11156/2015 Dated 27.07.2015
Per : Mr. H.K. Thakur;
This appeal has been filed by the appellant with respect to OIA No. SRP/100/VAPI/2012-13 dated 01.11.2012 passed by Commr. (A), VAPI
2. Shri. Anand Mishra (Advocate) appearing on behalf of the appellant argued that the issue involved is whether appellant is liable to pay an amount of 10% on the value of clearances made to SEZ developers in terms of Rule 6(6) of the Cenvat Credit Rules 2004. Learned Advocate relied upon the case Law of CESTAT, Bangalore reported as Sujana Metal Products Ltd vs. CCE Hyderabad [2011 (273) ELT 112 (Tri.-Bangalore)], where it was held that amendment later carried out in Rule 6(6) is retrospective in nature and will cover appellants period also. That order passed by CESTAT Bangalore in Sujana Metal case was Later relied upon by Karnataka High Court in the case of CCE and ST Bangalore vs. Forsoc Chemicals (India) Pvt Ltd [2015 (318) ELT 240 (Kar.)].
3. Shri. S. Shukla (AR) appearing on behalf of the Revenue argued that Commr. (A) has relied upon certain case laws to hold that amendment carried out in Rule 6(6) is not retrospective. Learned AR strongly defended the order passed by the first appellate authority.
4. Heard both sides and perused the case records. The issue involved in these proceedings is whether appellant is required to pay an amount @ 10% of the value of clearances made to SEZ developers. By an amendment (effective from 31.12.2008) such credit taken by a unit has been held to be admissible. It has been interpreted by CESTAT Bangalore in the case of Sujana Metal Products Ltd vs. CCE Hyderabad (Supra) that the amendment made in Rule 6(6) of CCR is retrospective. The same ratio was followed by Karnataka High Court in the case of CCE and ST Bangalore vs. Forsoc Chemicals (India) Pvt. Ltd (Supra), to hold that the same amendment is retrospective. No contrary case law of other High Court has been brought forward by the Revenue with respect to the amendment carried out in Rule 6. When a specific case law of a High Court on amendment is available it is not correct to hold that intention of legislature has to be interpreted on the basic of other case laws as done by first appellate authority.
5. In view of the above observations the case laws relied upon by the appellants are squarely applicable to the facts in hand. Accordingly, appeal filed by the appellant is allowed.
(Operative part of the order pronounced in the Court)
(H.K. Thakur) Member (Technical) VM
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free