M/S. Vidyut Metalics Private Limited vs Commissioner Of Central Excise ...

[Arising out of Order-in- Appeal No. 88/M-III/2009 dtd. 29/9/2009 passed by the Commissioner of Central Excise (Appeals). Mumbai-Zone II]

For approval and signature:

Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No 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 : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities?

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M/s. Vidyut Metalics Private Limited : Appellant

VS

Commissioner of Central Excise Mumbai-III : Respondent

Appearance

Shri. Prasad Paranjape, Advocate for the Appellants Shri. V.K. Shastri, Asst. Commissioner(A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 15/1/2015 Date of decision 15/1/2015

ORDER NO.

Per : Ramesh Nair

The Appeal is directed against Order-in- Appeal No. 88/M-III/2009 dtd. 29/9/2009 passed by the Commissioner of Central Excise (Appeals). Mumbai-Zone II, wherein the Ld. Commissioner(Appeals) has dropped penalty and confirmed interest and thus Appeal of the appellant is partly allowed. The fact of the case is that the appellant, M/s. Vidyut Metalics Pvt. Ltd. Unit No. 2 are clearing excisable goods for consumption to their Plant No.1on payment of excise duty. The show cause notice was issued alleging that he appellant has not declared the correct value despite valuation has been settled vide Order-in-original No. 11/KKS/2003-04 issued by the Commissioner of Central Excise, M-II which has been accepted by the assessee. In the adjudication order the demand of Rs. 8,072/- and Rs. 2,73,255/- was confirmed and appropriated against amount already paid by the appellant. The adjudicating authority also ordered for recovery of interest and imposition of penalty of Rs. 2,87,296/-. Aggrieved by the said order, the appellant filed appeal before the Commissioner(Appeals), who modified order-in-original the to extent that duty demand and interest thereof were upheld and penalty of Rs. 2,87,296/- was set aside, now the appellant is before me.

2. Shri Prasad Paranjape, Ld Counsel for the appellant submits that they had applied for single registration in respect of their unit No. 2 and 1 vide their application dated 30/7/2001 to the Commissioner of Central Excise. The matter of issuance of single registration was adjudicated by the Commissioner vide order-in-original No. 01/TECH/KKS/05-06 dated 1/4/2005 wherein the application was rejected. The said order challenged by the appellant before the Appellate Tribunal where in the order-in-original dated 1/4/2005 was set aside and appellant was directed to be issued single registration. The Revenue filed Central Excise Appeal No. 249/2006 before Honble Bombay High Court wherein Honble Bombay High Court by its order dated 30/8/2007 dismissed the Appeal of the Revenue. In compliance to the Honble High Court order the appellants were granted single registration. It is the submission of the Ld. Counsel that since their application for single registration has been allowed the same become effective from the date of application i.e. 30/7/2001. It is his submission that once the single registration is effective from 30/7/2001 thereafter all the clearances made by the unit No 2 to 1 is nothing but captive consumption in single factory and the same is not liable for any excise duty in terms of Notificaion No. 67/95 CE dated 16/3/1995. He submits that since by virtue of Notification 67/ 95-CE the clearances of captive consumption itself is not dutiable there is no question of demand of differential duty on such clearances and consequently no interest is payable. He submits that though the appellant have not claimed the exemption of Notification No 67/1995 before the lower authorities but eligibility of Notification being question of law can be raised first time before this Tribunal. In support of his above submissions, he placed reliance on the following judgments.

(a) [2003(153) E.L.T. 485(S.C)] CCE Vs. M.P.V & Engg. Industries

(b) [2008(221)E.L.T. 285(Tri. Del)] Poly Printers Vs. C. EX. Delhi

(c) [2010(251)E.L.T. 255(Tri. Bang)] Essar Steel Ltd. Vs. CCE, C.ST. Visakhapatnam

(d) [2009(237) E.L.T. 55(Tri.Bang)] Sudram Fasteners Ltd. Vs. CC.C.Ex. Hyderabad

(e) 2010(213) E.L.T. 275(Tri. Bang) Lanco Industries Ltd. Vs. CC, C. Ex. Tirupathi

(f) [2007(213) ELT 490(S.C.) CC.EX.Pune Vs. Coca-Cola India Private Limited

(g) [2009(241)ELT 153(Tri- Ahmd)] Mafatlal Industries Ltd. Vs. CC.Ex. Daman

(h) [2010(254) E.LT. 628(Guj) CC.Ex. &Cus. Vadodara II Vs. Indeos ABS Limited

(i) [2010(258) ELT. 62(Kar)] Karnataka Soaps & Detergents Ltd. Vs. CC.EX. Mysore \

3. On the other hand, V.K. Shastri, Learned Asst. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that the appellant has not contested the duty demand before the Commissioner(Appeals) further they have only contested the issue of demand and interest and imposition of penalty. Therefore at this stage it is not open for the appellant to challenge the demand. He submits that the appellant never claimed the Notification 67/95-CE before lower authorities. He also submits that during the clearance of the goods both the units were having the registration therefore duty was correctly payable and Notification No. 67/1995 is not available to the appellant.

4. I have carefully considered the submissions made by both the sides and perused the record.

5. From the record, I have observed that appellant have never made claim of exemption Notification No 67/95-CE before the lower authorities. However, before the Commissioner (Appeals) in their prayer they prayed for setting aside the order-in-original. As regard the claim of the appellant of the exemption Notification 67/95-CE at the Tribunal stage, I agree with Ld. Counsel that the Notification being question of law can be raised at the stage of Tribunal also. As regard the contention of the appellant that the status of single registration should be maintained with effect from filing of their application, I am of the view that since the matter of very same application which was traveled up to the High Court and it was held that single registration should be granted, effect should be given from the date of application made by the appellant for single registration i.e. 30/7/2001. It is undisputed that since the claim of the Notification No. 67/1995 was not made by the appellant before lower authorities explicitly in Appeal made before the Commissioner(Appeals). It is just and proper that matter should be remanded to the original authority to examine eligibility of Notiifcation No. 67/95-CE and the clearance made by the appellant to their another unit No. 1.

5.1 I, therefore allow the Appeal by way of remand to the adjudicating authority with the direction that the matter should be disposed of within a period of three months from the date of receipt of this order. Needless to say that the appellant should be given sufficient opportunity for presenting their case.

(Operative part pronounced in the Court)

Ramesh Nair Member (Judicial)

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