Shri Dheeraj Goel, Director vs Cce, Rohtak

[Arising out of the Order-in-Appeal No. 87-89/GRM/GGN/2006 dated 09/03/2006 passed by The Commissioner of Central Excise (Appeals), Gurgaon.]

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 Iceberg Goods Ltd. ]

Shri Dheeraj Goel, Director ] Appellants

Shri R.S. Gupta, General Manager ]

Versus

CCE, Rohtak Respondent

Appearance

Shri Kamaljeet Singh, Advocate  for the appellant.

Shri M.S. Negi, Authorized Representative (DR)  for the Respondent.

CORAM: Honble Shri Ashok Jindal, Member (Judicial)

Honble Shri B. Ravichandran, Member (Technical)

Final Order No. 52300-52302/2015 Dated : 15/07/2015

Per. B. Ravichandran :-

The appellant are manufacturers of packaged drinking water and aerated water in their own name and also in the brand name of Kingfisher. During the year 2003-2004 (December 2003 to January 2004) the appellant availed SSI exemption on goods cleared under their own brand name. During the year 2004-2005 also (April to August 2004) they have availed SSI exemption on their own goods. In respect of Kingfisher brand, they have availed rural area exemption. They have two more factories at Jaipur and Vasai. They were issued with a show cause notice on 07/7/2005 on the ground that since they have not availed SSI exemption for their units in Vasai and Jaipur they are not eligible for SSI exemption in their further Rohad unit. The case was adjudicated resulting in confirmation of demand of Rs. 22,67,593/- with equal penalty. Penalties were also levied on Director, General Manager and Accountant of the appellant company. On appeal, the order was upheld by the learned Commissioner (Appeals) vide his order dated 09/3/2006. Aggrieved by the said order, the appellant is before us.

2. Heard both the sides and examined appeal records. The learned Counsel for the appellant pleaded that the two units of the appellant situated in Jaipur and Vasai were paying duty and availing Cenvat credit. The present order relating to Rohad unit is not sustainable in law as they have operated as per the condition No. (i) of para 2 of the Notification No. 8/2003-CE. There is no condition about the status of other units of the manufacturer. He also contended that the Jaipur unit was set up in October 2003 and Vasai unit in December 2003 whereas the Rohad unit (present appellant unit) was set up in July 2002 they have exercised the option for availing SSI exemption in April 2003. At that time, the other two units were not in existence. The Original Authority as well as Appellate Authority proceeded against them in their own premise of reading together all the conditions of the Notification, which are not applicable to them. On the other hand learned AR contended that the manufacturer having multiple units are bound by the condition of combined turnover and single option for exemption or duty payment.

We find that the demand was confirmed only on the ground that they have been paying duty in two of their units at Jaipur and Vasai and accordingly they cannot avail SSI exemption for their Rohad unit. It appears that the Department proceeded on the basis of the condition that clearance of all the factories of the same manufacturer should be considered for exemption and as such option of duty payment also should be for all factories of the manufacturer. We find that if the SSI exemption is to be denied to the assessee then the combined turnover of all the units of the manufacturer are to be taken and based on the aggregate value of the clearance. The proceedings are not on these lines. In fact for the year 2003-2004, the value of clearance of Jaipur unit is stated to be Rs. 6,82,584/- and for Vasai unit Rs. 20,23,374/- the value of clearance of Rohad unit for the period December 2003 to January 2004 is shown as Rs. 22,16,180/-. We find that if a combined reading of all the conditions of para 2 of the Notification No. 8/2003-CE is to be taken then aggregate value of all excisable goods cleared from one or more factories by the same manufacturer is to be considered.

The combined reading has been made for denying the exemption to the appellant unit not on this ground, but on the ground that option of payment of duty is to be exercised for all factories of the same manufacturer. We find no support for such obligation from the wordings of the condition (i) of para 2 of the said Notification. Accordingly, we allow the appeals 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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