M/S. Wintek Prelam vs C.C.E & S.T. Jalandhar

[Arising out of Order-in-Appeal No. JAL-EXCUS-000-COM-005-14-15 dated 31.03.2015 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Jalandhar].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

Hon'ble 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 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. Wintek Prelam .Appellants

Vs.

C.C.E & S.T. Jalandhar .Respondent

Appearance:

Shri Sudhi Malhotra & A.S. Hasija, Advocate for the Appellant

Shri Govind Dixit, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Hon'ble Shri B. Ravichandran, Member (Technical)

Date of Hearing: 30.09.2015

FINAL ORDER NO. 53103/2015-EX(DB)

Per Ashok Jindal:

Appellant is in appeal against the impugned order confirming the demand of Rs.7173188 along with interest and equivalent amount of penalty.

2. The case of the appellant is that they are manufacturing pre Laminated Bagasse Board and claiming exemption under notification no.12/2012-CE dated 17.03.2012 (Sl.No. 330) wherein they are not required to pay any duty on these boards. Revenue is of the view that appellant is not entitled to claim the benefit under the said exemption notification. Therefore, they are liable to pay duty on their goods. Consequently, show cause notice was issued which was adjudicated and converted into the impugned demands.

3. The Ld. Counsel for the appellant submits that prior to notification no. 12/2012-CE another notification no. 6/2006-CE dated 01.03.2006 (Sl. No. 82) was in force wherein the Bagasse board was exempted from payment of duty. Consequent to that, Revenue clarified to Consulate General of Nepal vide letter dated 19.06.2007 that the product pre laminated baggase particle board falling under entry no.82 of notification no. 06/2006-CE are eligible for exemption under the said notification. Therefore, they are not required to pay duty on their product as same is exempted from duty. He also took support of the decision of the Honble High Court of Gujarat in the case of Dharshan Boardlam Ltd. Vs. UOI-2013 (287) ELT 401 (Gujarat) wherein the Honble High Court of Gujarat held on the same product i.e. Pre laminated bagasse Board, the appellant is entitled to avail exemption under the said notification i.e. 06/2006-CE dated 01.03.2006. Therefore, he prayed that impugned order be set aside.

4. On the other hand Ld. AR supported the impugned order and submitted that the appellant is not manufacturing bagasse board but processing bagasse board and are doing certain process of lamination thereof. Therefore, the item in question cannot be said bagasse board. In fact, the board is pre laminated bagasse board. Therefore, they are not entitled to claim exemption under said notification.

5. Heard the parties.

6. Considered the submissions made by both the sides.

7. After hearing the parties the following issue arose from the facts of the case. Whether the appellant is entitled for benefit of notification No. 12/2012 dated 17.03.2012 (Sl. No. 330) to clear duty from pre laminated bagasse board or not.

8. We have seen that prior to notification no.12/2012 ibid bagasse board was covered under Notification no.6/2006 under Sl. No. 82 dated 01.03.2006 wherein the bagasse board is entitled for exemption under such notification. The clarification was also issued by CBEC dated 19.06.2007 which is reproduced here as under:

which clarifies that pre laminated baggase particle board are exempted from duty. The said notification was superseded by the notification in question.

9. We also find that the issue involved in the matter came before the Honble High Court of Gujarat in the case of Dharshan Boardlam Ltd. (Supra) wherein the Honble High Court held that pre laminated bagasse board is entitled for exemption under notification no. 6/2006 (Sl. No. 82) dated 01.03.2006. Therefore, we hold that issue is no more res entigra and the appellant also is entitled for benefit of notification no. 12/2012 (Sl. No. 330) dated 17.03.2012 to clear pre laminated bagasse board without payment of duty.

10. With these terms, we set aside the impugned order and allow the appeal with consequential relief if any.

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

(B. Ravichandran) (Ashok Jindal) Member (Technical) Member (Judicial)

Bhanu

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E/51928/2015-EX(DB)