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2015 (11) TMI 321 - HC - Central ExciseExemption under the levy of central excise as per Notification Nos.63/95 dated 16.03.1995 - whether the petitioner is ex facie entitled to exemption under Notification Nos.63/95 dated 16.03.1995 and 4/2006 dated 01.03.2006, have been overlooked - Held that:- Petitioner was issued with a show cause notice dated 26.12.2014 by the Commissioner of Central Excise, Tirunelveli, to show cause as to why the products viz., Ilemenite, Zircon, Rutile, Sillimanite, leucoxene manufactured out of sea sand (ore) and cleared the same during the period from 01.03.2011 to 31.03.2014 should not be classified as concentrates of Ilemenite, Zircon, Rutile, Sillimanite, leucoxene under chapter sub heading 26140020, 26151000, 26060090 and 26140090 of CETA respectively, within 30 days from the date of receipt of the same. - petitioner has given a representation dated 01.04.2015 to the respondents giving the details of the documents to be furnished as per the order passed on 10.03.2015 and sent a reminder on 05.05.2015, however all of a sudden, to their surprise, the impugned letter dated 12.05.2015 was issued informing the petitioner that it is not reasonable to call for the documents which are not cited as relied upon documents in the show cause notice, on that basis, the petitioner was asked to submit his explanation, hence, the petitioner came to this court challenging the impugned communication dated 12.05.2015 raising two issues that in spite of a specific direction given by this court in other decision to furnish all the relevant documents which are relied on in the show cause notice, the respondent failed to furnish the same, as a result, the petitioner is neither able to give reply nor able to raise the basic and preliminary issue whether the Central Excise Department has jurisdiction to assess and levy central excise from the petitioner in view of notification No.63/95 granting full exemption to the petitioner's mine from the application of the Act. In the judgment of the ESI Court at Tirunelveli in ESIOP.No.8/2012 that the petitioner comes under the purview of the Mines Act and their activities are mining activity, hence, it is necessary for the respondents to decide the preliminary issue whether the petitioner is entitled to exemption under Notification Nos.63/95 dated 16.03.1995 and 4/2006 dated 01.03.2006 for the reason that para 17(11) of the notification states that 'mine' has meaning given in Section 2(i)(j) of the Mines Act, 1952 and as per Section 2(i)(j) the word 'mine' includes not only the mine area, but also the place where sand is processed, the place where the workshops are located and any adjacent premises. 27. Similarly, another notification No.4/06 dated 01.03.20006 also exempts all ores from the levy of central excise. In this context, it is pertinent to refer to various orders and judgments of both civil and criminal courts, holding that all the units of the petitioner firm are coming within the definition of 'mine' Impugned order dated 12.05.2015 informing the petitioner that it is not reasonable to call for the documents which are not cited as relied upon documents in the show cause notice dated 26.12.2014, is partly set aside - Decided partly in favour of assessee.
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