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2010 (2) TMI 535

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..... dent. [Order per : Mehinder Singh Sullar, J.]. - As per the brief, but relevant facts, emanating from the record, the appellant-assessee M/s. Dee Development Engineers Limited (for brevity "the assessee") is engaged in the manufacture of Accessories for Boilers and Tube of Pipe Fittings of Iron Steel amenable to Central Excise Tariff Act, 1985. During the course of scrutiny of documents, it revealed that the assessee has cleared the goods valued at Rs. 32,82,765/- without payment of Central Excise Duty. Therefore, the notice dated 28-5-2002 (Annexure A6) was issued to the assessee, as to why exemption under Notification dated 28-8-1995 (Annexure A1), in respect of goods cleared, duty free, to M/s. Thermax Babcock Wilcox Limited, Pu .....

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..... Section 11A of the Act and imposed a penalty of Rs. 20,000/- alongwith interest, vide impugned order dated 2-4-2003 (Annexure A7). 4. Aggrieved by the impugned order (Annexure A7), the assessee filed the appeal, which was rejected by the Commissioner of Central Excise (Appeals), vide order dated 24-11-2003 (Annexure A10). 5. Still aggrieved by the impugned order (Annexure A10), the assessee filed the appeal, which was also dismissed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, vide order dated 30-7-2004 (Annexure A12) [2004 (178) E.L.T. 452 (Tri. - Del.)]. 6. The assessee still did not feel satisfied with the impugned orders (Annexure A7, A10 and A12) and filed the present appeal. 7. Assailing the impugned .....

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..... urged that since the required certificate is not issued to the assessee, so it (assessee) cannot claim the benefit of Notification (Annexure A1) on the basis of certificate issued to M/s. Thermax Babcock Wilcox Limited, Pune, particularly when the Notification (Annexure A1) is clear in this connection. 9. In M/s. Ranbaxy Laboratories Ltd.'s case (supra), it was observed that "while construing an exemption notification not only a pragmatic view is required to be taken but also the practical aspect of it. A manufacturer would not know as to when the drug would be sold. It has no control over it. Its control over the drug would end when it is dispatched to the distributor. The manufacturer cannot supervise or oversee as to how others would .....

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..... re is no ambiguity in the Notification (Annexure A1) and in order to avail the exemption, all the terms and conditions mentioned therein are required to be fulfilled. 13. Thus, the core question for determination in this case is whether the assessee is entitled to the exemption of notification (Annexure A1) or not? 14. Having regard to the rival contentions of the learned counsel for the parties and having gone through the record, we are of the view that the assessee is not entitled to the aforesaid exemption. 15. The bare perusal of the record would reveal that in exercise of powers conferred by sub-section (1) of Section 5A of the Central Excise and Salt Act, 1944 read with sub-section (3) of Section 3 of the Additional Duties of Ex .....

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..... to M/s. Kakatia Cement Sugar Industries Ltd., Hyderabad, so it (assessee) is entitled to the exemption clause on the basis of certificate issued in favour of M/s. Thermax Babcock Wilcox Limited, Pune, is not only devoid of merit, but misplaced as well, because it is not a matter of dispute that the certificate (Annexure A2) by Project Implementing Authority was issued in the name of supplier M/s. Thermax Babcock Wilcox Limited, Pune and not in favour of the assessee, authorizing it, to remove all the goods under the Notification (Annexure A1) and the goods were not supplied, directly to the project financed by Asian Development Bank. Therefore, there is no ambiguity in the Notification (Annexure A1) and contrary arguments of learned .....

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