TMI Blog2016 (10) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... nical) 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 engaged in the manufacture of Partially Oriented Yarn (POY) is eligible for the benefit of 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 is applicable to NCCD also. It is the case of Revenue that there is no exemption for NCCD imposed on PFY and POY, even if the same is cleared to 100% EOU. It is the case of the Revenue that the appellant is required to discharge the duty of NCCD cleared to 100% EOU. Both the lower 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. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under:- 1. Main appellant M/s. Filatex India Limited is a manufacturer of POY out of duty paid chips and clearing part of its POY to 100% EOU availing exemption under Notification No. 22/2003-CE dated 31.03.2003. Main appellant is also clearing a part of POY manufactured to the job workers, gets the fabrics back 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 behalf of the appellants argued that NCCD is basically a duty of excise and Rule 19 of the Central Excise Rules provides for the removal of excisable goods without payment of duty for further use in the manufacture of export gods. It was thus his case that NCCD can not be demanded in respect of clearance of POY made to 100% EOU for goods which are ultimately exported. He reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Modern Petrofils Ltd. Vs. CCE 2012-TIOL-132-CESTAT-AHM, Bench held as under:- 1. This is an appeal filed by M/s. Modern Petrofils against the Order-in-Appeal No. Commr.(A)/ 127/VDR-II/2006, dt.10.08.06. 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. The National Calamity Contingent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to clearance under Notification No. 108/95 can be applied and, therefore, NCCD is not leviable in respect of clearance to 100% EOUs also. Accordingly, the appeal is allowed with consequential relief to the appellants. 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 National Calamity Contingency Duty (hereinafter referred as NCCD). Duty of ₹ 6,73,288/- has been confirmed against the appellant in respect of POY cleared to other 100% EOU on the ground that such clearances has to be treated as deemed export and inasmuch as the same was not physically export, the benefit of Circular No. 641/32/2002-CX., dt. 26-6-02 cannot be extended to the appellant, clarifying the NCCD as duty of excise, the same is not liable to be paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late 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 Contingency Duty (NCCD) is leviable on Partially Oriented Yarn (POY) and FDY when used captively in the manufacture of the goods falling under CETH 54.02 exempted under Notification No.46/2003-CE, dt.17.05.2003. 2. Shri P.P. Jadeja, learned Consultant appearing on behalf of the Appellant argued that POY and FDY does not attract NCCD when captively consumed. That when POY is sold as such by the Appellant, NCCD is paid by the Appellant at the time of clearance from the factory. It was his case that the issue 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 appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consumption with interest and penalties. 2. The learned Advocate on behalf of the appellants submits that the issue is no 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 Kirloskar 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, dt.28.08.95. He submits that ratio of this judgment can be applied for the purpose of clearance to 100% EOU also. 4. We find that as pointed by the learned Advocate, the issue is no more res integra and we also agree with the contention of the learned Advocate that the judgment of the Tribunal in relation to clearance under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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