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2015 (11) TMI 364 - CESTAT MUMBAI

2015 (11) TMI 364 - CESTAT MUMBAI - 2016 (333) E.L.T. 145 (Tri. - Mumbai) - Classification of goods - Classification under CSH 1701.31 or 1701.39 - Clearance of sugar as levy sugar - Held that:- Clearance of free sale sugar by the respondent sugar factories are as per the direction and order of the State or the Central Government, which is covered under the tariff heading number 1701.31 and the Central Excise duty is payable as per the tariff entry. This conclusion of ours is after considering t .....

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NNAI) - impugned orders are correct and legal and there is no infirmity in them. - Decided in favour of assessee. - Appeal No. : E/2611/05, E/2612/05, E/2613/05, E/2614/05, E/2615/05, E/2616/05, E/2667/05, E/2725/05 & E/CO/46/06 And E/2820/05 - Final Order Nos. A/3608-3617/2015-WZB/EB - Dated:- 21-10-2015 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) For the petitioner : Shri Ajay Kumar, Jt. Commr (AR) For the Respondent : Shri V.B. Gaikwad, Advocate ORDER Per: .....

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the respondents herein are sugar factories and are controlled by the provisions of Essential Commodities Act and the Levy Sugar Supply (Control) Order, 1979 as to the clearances of sugar manufactured in their factories. The respondent assessees are required to clear a particular percentage of sugar as levy sugar which is classified under CSH 1701.31 or 1701.39 and are discharging the specific rate of duty as per tariff. Respondent assessees are also permitted to clear a particular percentage of .....

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mands raised along with interest and also imposed penalties. The first appellate authority set aside the impugned orders. 5. Learned departmental representative would draw our attention to the provisions of Essential Commodities Act 1955 as also to the order issued under the Levy Sugar Supply (Control) Order 1979 and submit that an order issued under Section 3 of the Essential Commodities Act cannot be considered for the clearances at a lower rate of Central Excise duty. He would further submit .....

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in excess of allotted Levy sugar, is as per the directions of the State Government or the Central Government, hence the respondent assessee should not be put to a disadvantage by holding that they are liable to pay Central Excise duty at higher rate. 7. On consideration of the submissions made by both sides, we find that the impugned orders are correct and legal and no interference is called for more than one reason. 7.1. Firstly, the clearance of free sale sugar by the respondent sugar factori .....

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that the first appellate authority has correctly set out the reasonings for setting aside the orders in original. We reproduce the findings which are recorded at paragraph number 4. 4. I have carefully gone through the case records and the various submissions made by the appellants. The issue to be decided is whether the excess quantity of sugar which was requisitioned by the Central Government under the Levy Sugar Supply (Control) Order, 1979 is classifiable under CSH No. 1701.31 or 1701.39 of .....

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ed section or chapter notes; that therefore, the quantity of sugar cleared in excess of levy entitlement of the appellant is classifiable under CSH 1701.39 attracting Central Excise duty @ ₹ 85/- per quintal; that the excess quantity of sugar was out of the free sale quota, and only such percentage of production .of sugar required and ordered by Central Govt. can be classified as "Levy sugar" under CSH 170'1.31 which has been ordered under Section 3(2)(f) of the Essential Com .....

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vy Sugar Supply (Control) Order 1979 shows that as per the said clause, Central Govt. may by order direct any producer or importer or recognized dealer to supply levy sugar to such persons or organizations, State Govt/Union Territory as may be specified in the order. As per Explanation to Clause 2(1) of The Levy Sugar Supply (Control) Order, 1979, 'levy sugar' means the sugar requisitioned by the Central Government under Section 3(2)(f) of the Essential Commodities Act, 1955. This theref .....

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any clearances made under Clause 2(1) of Levy Sugar Supply (Control) Order, 1979, even in excess of the levy entitlement of the producer has to be treated as supplied under Section 3(2}(f) of Essential Commodities Act, 1955 only. Therefore, in the present case, as the excess supply of levy sugar has been made under clause 2( 1) of the Levy Sugar Supply (Control) Order, 1979, the same falls under the category of supply requisitioned by Central Government under Section 3(2)(f) of Essential Commodi .....

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;( Levy Sugar Supply (Control) Order, 1979, all factories are to comply with the levy sugar release order issued by the Directorate in the first instance, even if the entire quantity/part quantity, so released exceeds the levy entitlement of the factory and non compliance of the order was punishable under Essential Commodities Act, 1955. Therefore, the department's case that excess clearances cannot be treated as clearance under Section 3(2)(f) of Essential Commodities Act, 1955 is not tenab .....

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