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2016 (10) TMI 455 - CESTAT MUMBAI

2016 (10) TMI 455 - CESTAT MUMBAI - TMI - NCCD u/s 136 of the Finance Act, 2001 - goods cleared to 100% - Partially Oriented Yarn (POY) - Notification No. 46/2003-CE dated 17.05.2003 which exempted goods falling under Chapter No. 54.02 of the Central Excise Tariff Act, 1985 - whether the appellant is eligible to get exemption of NCCD on goods cleared to 100% EOU? - Held that: - the Tribunal held that the issue is no more res integra and followed the decision in the case of Filatex India Ltd. Vs. .....

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9/07-Mum - A/89916/16/EB - Dated:- 22-7-2016 - Mr. M.V. Ravindran, Member (Judicial) And Mr. Devender Singh, Member (Technical) Ms. Anjali Hirawat, Advocate Advocate for Appellant Shri N.N. Prabhudesai, Supdt. (A.R.) for Respondent ORDER Per M. V. Ravindran: This appeal is directed against Order-in-Appeal No. SVS/315/NGP-II/2006 dated 05.10.2006 passed by the Commissioner of Central Excise, (Appeals), Nagpur. 2. The relevant facts that arises for consideration whether the appellant who is engage .....

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wer authorities held against the appellant. 3. Learned Counsel would draw our attention to the facts and submit that the issue is no more res integra. An identical issue had been decided in this Tribunal in the case of Filatex India Ltd. Vs. CCE & ST 2014 (302) ELT 446 (Tri.-Ahmd.), J.B.F. Industries Ltd. Vs. CCE -2009 (246) ELT 286 (Tri.- Ahmd.) and M/s Chiripal Industries Ltd. Vs. Commissioner of Central Excise and Service Tax, Ahmedabad 2015-TIOL 1637-CESTAT-AHM, wherein it was held that .....

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n the case of Hero Honda Motors Ltd. Vs. Commissioner of Central Excise, Meerut 2011 (273) ELT 89 (Tri.-Del.). It is his submission that notification should be construed strictly and there is no reason for any intendment as held by the Hon'ble Supreme Court in the case of Hemraj Gordhandas Vs. H.H. Dave 1978 (2) ELT (J350) (SC), Grasim Industries Ltd. and Another Vs. State of Madhya Pradesh and Another AIR 2000 SC 66. He would also rely upon various decisions of Hon'ble Supreme Court in .....

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sides and perused the records. 6. We find that the issue involved in this case is regarding National Calamity Contingency Duty leviable under Section 136 of the Finance Act, 2001 (14 of 2001), read with Section 169 of the Finance Act, 2003 (32 of 2003) as mended by Section 3 of Finance Act, 2004 for the period April, 2004 to August, 2004. It is not in dispute that the demand of NCCD is on POY cleared to captive consumption for goods manufactured export in an 100% EOU. 7. We find that the learne .....

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k and clear the same on payment of duty. In respect of the clearances to 100% EOU, it is the case of the Revenue that NCCD is leviable on the ground that exemption under Notification No. 22/2003-CE does not cover exemption from NCCD. Regarding second issue of clearance of POY to job-worker for manufacture of grey fabrics, it is the case of the appellant that the same is covered by Rule 4(5) (a) of the Cenvat Credit Rules and no duty is payable. 2. Shri Anand Nainawati (Advocate) appearing on beh .....

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Vadodara (Appeal No. E/2748/2006) and argued that the present appeals are squarely covered by the latest law laid down by this bench. He also relied upon CBEC Circular No. 641/32/2002-CX dated 26.06.2002 on the issue. 3. Shri K. Shivakumar (AR) appearing on behalf of the Revenue defended the orders passed by the adjudicating authority. He also relied upon the judgment of CCE vs. Mahendra Petrochemicals Limited [2010 (256) ELT 473 (Tri. Ahmd.)]. 4. Heard both sides and perused the case records. O .....

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onal Calamity Contingent Duty (NCCD) on goods exported under bond. The duty demands are issued on the ground that the said notification does not apply to NCCD. ii Board has examined the matter. Though NCCD is levied under Finance Act, 2001, it is a duty of excise. Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001 issued under Rule 19 of Central Excise Rules, 2001 read with Central Excise Rules, 2002 allows goods to be exported without payment of duty. Further, it is the policy to grant relie .....

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h respect to chargeability of NCCD on captive consumption of goods, it has been held in the case of M/s. Modern Petrofils vs. CCE Vadodara (supra) by this bench that NCCD is not leviable. In view of the latest view point held by this bench NCCD is not payable by the appellant. Secondly, CBEC circulars issued on an issue are binding on the departmental officers and cannot be challenged in appeal. In view of the above observations appeals filed by the appellants are allowed. In the case of M/s Mod .....

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ent Duty (NCCD) was imposed @ 1% Adv. with effect from 01.03.2003 on the said goods as per section 136 of the Finance Act, 2001 read with clause 161 of the Finance Bill 2003 (now section 169 of the Finance Act, 2003). It appeared that the exemption from the payment of National Calamity Contingent Duty (NCCD) was not available to the manufacturer of the above goods cleared to 100% EOU, Further, whereas the notification no.46/2003-CE dated 17.5.2003 was issued to exempt the goods falling under hea .....

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mposed penalty and directed the company to pay interest. On appeal, the Commissioner (Appeals) upheld the impugned order and rejected the assessee's appeal. 4. We find that the issue had already been decided by this Bench in a case of the same appellant (M/s. Modern Petrofils Ltd.) in Appeal No.E/1640/05 reported in 2009-TIOL-515-CESTAT-AHM. 5. The facts are identical and the issue is no more res-integra. The decision of this Bench is as follows: The appellants have challenged the impugned o .....

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ted in 2008 (227) ELT 269 (Tri-Chennai) = (2008-TIOL-1209-CESTAT-MUM) (ii) CCE, Trichy Vs. Kulavi Tobacco industry reported in 2008 (227) ELT 416 (Tri-Chennai) 3. As regards clearances to 100% EOUs, he submits that in the case of Toyota Krloskar Motor Pvt Ltd. Vs. CCE, Bangalore reported in 2007(217) ELT 403 (Tri-Bang) = (2007-TIOL-1422-CESTAT-BANG), it was held that NCCD is not leviable in respect of goods cleared availing the benefit of Notification No. 108/95-CE dated 28.8.95. He submits that .....

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6. In view of these facts and the legal position, we find that the Order-in-Appeal does not stand. The appeal filed by the appellants is therefore allowed with consequential relief. 7.1 In the case of J.B.F. Industries Ltd. (supra) held as under:- 1. The appellant is engaged in the manufacture of POY, which was being supplied by them to other 100% EOU as also was being sent to their job workers for conversion into texturised yarn. 2. The dispute in the present appeal is in respect of the Nation .....

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find that Tribunal in the case of M/s. Modern Petrofils Ltd. being Order No. A/2689/WZB/AHD/2008, dt. 3-2-08, by taking note of the precedent decisions, has held that NCCD is not leviable in respect of the goods cleared to other 100% EOU. As such, we find that the issue is settled in favour of the assessee. We, accordingly, set aside the demand of duty of ₹ 6,73,288/-. 3. Another demand of ₹ 10,39,624/- has been confirmed against the appellant as NCCD in respect of POY cleared to th .....

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hould have been paid by them on POY cleared from their factory. This, submits the learned advocate, was under the bona fide belief on their part and as soon as the same was pointed out by Revenue, they deposited the said duty of ₹ 10,39,624/- even prior to issuance of show cause notice. As such, he submits that penalty of ₹ 5 lakhs reduced by Commissioner (Appeals) under the provisions of Rule 25 should be set aside in its totality. 4. We find force in the above contention of the lea .....

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aws that POY cleared to 100% EOU is not liable to NCCD. 8. As regards the POY cleared for captive consumption, the Tribunal decision in the case of M/s Chiripal Industries Ltd. (supra) held as under:- 1. This appeal has been filed by the Appellant with respect to OIA No.78/2007(Ahd-I), dt.27.02.2007, under which the first Appellate Authority has confirmed the OIO dt.22.11.2006 passed by the Adjudicating authority. The issue involved in the present proceedings is whether National Calamity Conting .....

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ssue of leviability of NCCD during captive consumption is no more res integra and is covered by the following case laws decided by this Tribunal:- a) M/s Modern Petrofils Vs CCE Vadodara-II Order No.A/2094/WZB/AHD/2011, dt.10.06.2011 (in Appeal No.E/2748/2006) b) M/s Modern Petrofils Vs CCE Vadodara-II Order No.A/2689/WZB/AHD/2008, dt.03.12.2008 (in Appeal No.E/1640/2005) c) M/s Filatex India Ltd Vs CCE Vapi [2014 (302) ELT 446 (Tri-Ahmd)] 3. Shri L. Patra, learned Authorised Representative appe .....

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captively consumed. The Appellants has relied upon the case law of Modern Petrofils Ltd (supra) in Appeal No.E/2748/2006 passed by this Tribunal. 4.1 Para 2, 4, 5 & 6 of the above Order dt.10.06.2011 are reproduced below:- 4.2. The facts of the case are that the appellants are manufacturing Polyester Chips falling under sub-heading 3907.60 of CETA, Partially Oriented Yarn (PTY) falling under sub-heading 5402.32 and Polyester Filament Yarn (PFY) falling under sub-heading 5402.52 of the CETA. .....

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the goods falling under heading No.54.02 from the whole of the NCCD leviable thereon under Section 136 of the Finance Act, 2001 read with Clause 161 of the Finance Bill, 2003 (now Section 169 of the Finance Act, 2003) if such goods are manufactured from the goods falling under Heading No.54.02. However, there was no specific exemption notification that exempted NCCD imposed on POY cleared for captive consumption. 4.3 We find that the issue had already been decided by this Bench in the case of s .....

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more res integra and submits that in respect of captive consumption, the following decisions of the Tribunal in support of his stand that NCCD is not leviable in respect of clearance for captive consumption:- (i) Tatra Trucks India Ltd Vs CCE, Chennai reported in 2008 (227) ELT 269 (Tri-Chennai) = (2009-TIOL-1209-CESTAT-Mum) (ii) CCE Trichy Vs Kulavi Tobacco Industry reported in 2008 (227) ELT 416 (Tri-Chennai) 3. As regards clearances to 100% EOUs, he submits that in the case of Toyota Kirloska .....

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