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Commissioner of Central Excise and Service Tax, Mangalore Versus Indian Plywood Manufacturing Co. Ltd.

2018 (2) TMI 385 - CESTAT BANGALORE

Benefit of N/N. 148/73 CE dated 21.07.73 - Veneered Particle Boards Commercial - Held that: - On a perusal of the Trade Notice No. 26/70 dated 21.02.1970, it has been clarified the position with reference to the N/N. 201/69 dated 16.08.1969 it is clarified that the tariff value is to be determined on the basis of the plywood. The Trade Notice has clarified that the Veneered Particle Board on which decorative plywood is pasted on either or both sides are to be assessed as though it consisted only .....

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of Department. - E/Early Hearing/20674/2017 in E/457/2004-DB - Final Order No. 22984 / 2017 - Dated:- 12-12-2017 - Shri S. S. Garg, Judicial Member And Shri V. Padmanabhan, Technical Member Dr. J. Harish, Deputy Commissioner (AR) For the Appellant Shri Venkatesh R. Bhagat, Advocate For the Respondent ORDER Per : V. Padmanabhan There is a miscellaneous application for change of cause title. In view of the facts stated in the miscellaneous application for change of cause title, we accept the praye .....

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termined in terms of Tariff Value fixed for the goods. The Explanation (II) to the Notification is reproduced below for ready reference: Explanation II: Particle Boards, veneered with plywood panels on one or both sides shall be treated with as one or two layers of plywood, as the case may be, and each layer of plywood shall be assessed to duty at the tariff value applicable to commercial or decorative plywood, as the case may be. It appeared to the Department that the goods in question were Par .....

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ground of time bar. 01.11.1973 to 30.09.1974 and 01.01.1976 to 30.04.1976 The rest of the demands were upheld by the original authority and when the issue was carried out before the Commissioner (Appeals), the impugned order came to be passed in which the entire demands were dropped. Aggrieved by the decision, Revenue is in appeal before us. 2. With the above background, we heard Dr. Harish, DR for the Revenue as well as Shri Venkatesh R Bhagat, learned advocate appearing for the respondent. 3. .....

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fication cannot be made applicable retrospectively to the period in question in the present case. (ii) There was a practice of allowing the benefit of the Notification to the goods being manufactured by the assessee as seen from the Trade Notice issued by the Collector of Central Excise, Bangalore No. 26/70 dated 21.02.1970. (iii) The demands have been made in the case by quoting erstwhile Rule 10A which does not fulfill the requirement of raising demand under Rule 10. Accordingly the learned Co .....

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against the respondent, the citing of the 1989 Board Circular is only incidental and cannot be used to say that the effect of the Circular cannot be granted to the earlier period. (iii) He further argued that wrong quoting of the Rule in the show-cause notice will not vitiate demand if the show-cause notice otherwise outlined the reasons in detail for making the demand. In this connection, he relied on the decision of the Hon ble Supreme Court in the case of J.K. Steel Ltd. Vs. Union of India 1 .....

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ly held that the Circular issued in 1989 denying the benefit of the Notification for such goods cannot be made applicable retrospectively for the earlier period. (ii) He also argued that the show-cause notices issued had quoted the wrong Rule which vitiated the entire proceedings and the demand cannot be upheld. In this connection, he relied on the decision of the Hon ble High Court of Bombay in Bhor Industries Vs. Union of India 1991 (51) E.L.T 287 (Bom.). (iii) The learned counsel also asserte .....

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ssed to duty as two layer plywood at the tariff value applicable to commercial or decorative plywood. 5. We have heard both sides and perused the records. 6. Before considering the question of the Notification benefit, it is necessary to appreciate the nature of the goods manufactured by the respondent during the disputed period. The nature of the goods manufactured has been described by the original authority in this order dated 06.11.2001. The Veneered Particle Boards Commercial is said to hav .....

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at the veneer is pasted on top of plywood which is first pasted on the Particle Board. But the facts of the case, as appearing from the Order-in-Original, do not substantiate the above view advanced on behalf of the respondent. The Explanation to the Notification specifically gives the benefit of the Notification to Particle Boards, veneered with plywood panels on one or both sides. The crucial aspect of the benefit of the Notification get extended only when there is at least one plywood panel p .....

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plywood panels. Even though such clarification stands given only in 1989, even for the earlier period the benefit of the Notification is not allowable for such goods as seen from the wording of the explanation itself. We are of the view that the 1989 clarification of the Board has only clarified the position at a later date and there is no need to answer the question of whether the clarification is applicable retrospectively. 7.1. On a perusal of the Trade Notice No. 26/70 dated 21.02.1970, we n .....

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