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2016 (3) TMI 260 - CESTAT MUMBAI

2016 (3) TMI 260 - CESTAT MUMBAI - TMI - Clearance of goods without payment of duty on the strength of C.T. 2 certificate issued by the authorities in-charge of cold storage - remission of duty under Chapter X of Central Excise Rules - Held that:- As it is not in dispute that the appellant had cleared the finished goods to various consumers without payment of duty on C.T.2 certificate produced by such consumers. On perusal of the said C.T. 2 certificate, annexed in the appeal memo, I find that t .....

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s chargeable to nil rate of duty hence provisions of Rule 57C of Central Excise Rules, 1944 are not applicable holding such view, held in favour of the assessee that he need not to reverse 8% / 10% of the value of the goods cleared by them by following Ch. 10 procedure. - Decided in favour of assessee - Appeals No. E/802/10 and E/274/11 - Dated:- 19-11-2015 - M V Ravindran, Member (J) For the Appellant : Shri J A Swamy, Adv For the Respondent : Shri H M Dixit, Asst. Commr. (AR) ORDER Per M. V. R .....

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nt of duty on the strength of C.T. 2 certificate issued by the authorities in-charge of cold storage. It is the case of the Revenue and as confirmed by the lower authorities, that the goods cleared to cold storage purchasers were without payment of duty is exempted and appellant is required to reverse 8% or 10% of the value of the goods cleared to such cold storage consumers while it is the case of appellant that clearances effected by them to cold storage purchasers are not exempted as per the .....

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f Central Excise Rules may not arise as the clearances are made under Chapter X of Central Excise Rules and the duty liability as paid by the appellant therein. He relied upon the ratio to submit that the clearances effected by the appellant herein under Chapter X is an exemption availed by them under Notification 6/2006-CE. 6. After considering the submissions made by both sides and perusal of the records, I find that it is not in dispute that the appellant had cleared the finished goods to var .....

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2008 (223) ELT 508 (Tri. Del.) has held that the clearances made under Chapter X procedure or under bond is not same thing as clearances of goods wholly exempt or goods chargeable to nil rate of duty hence provisions of Rule 57C of Central Excise Rules, 1944 are not applicable holding such view, held in favour of the assessee that he need not to reverse 8% / 10% of the value of the goods cleared by them by following Ch. 10 procedure. This order of the Tribunal was upheld by the Apex Court by dis .....

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hmd) has clearly held that "Sulphuric Acid cleared without payment of duty under Notification no. 4/2006-CE dt. 1.3.2006 is not under exempted goods and is not chargeable to nil rate of duty, 10% of the amount is not payable under Rule 6. In the case of Kesoram Rayon vs. CCE, Kolkata-IV reported in 2007 (83) RLT 397 (CESTAT-Kol) wherein the appellants took credit of input for manufacture of Sulphuric Acid, part of which was supplied under Chapter X procedure without payment of duty and the .....

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r Chapter X procedure, which is neither exempted goods nor chargeable to nil rate of duty. Further I find that the impugned order has been passed by the lower appellate authority following the decision of the Ballarpur Industries Ltd. (supra). I find that in the case of Ballarpur Industries Ltd. - 2007-TIOL-153-SC-CX ratio has been laid down in para 8 which is reproduced here as under: "Value is the function of price. In every case in which there is an allegation of evasion, a show cause no .....

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hich is used in manufacture of both the above categories of final products." The Apex Court has held in that case the reversal of Cenvat credit of 10% under Rule 6 is applicable only and the cases where a manufacturer is engaged in the manufacture of any final product which is chargeable to duty as well as any other final product which is exempted from payment of duty or chargeable to nil rate of duty but in the instant case is not so as the final product is the sulphuric acid only and the .....

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d that the appellants were clearing the Spent Sulphuric Acid under Chapter X procedure to various manufacturers of fertilizers against CT-2 certificates. The obligation is on the receiver of such goods to use the same in a specified industrial process. In case, the goods received under this procedure were not used for specified industrial process, the person who receive the goods is liable to pay the duty hence the goods cleared under Chapter X Procedure are neither exempted nor said to be charg .....

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