TMI Blog2023 (9) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... that the liability to discharge duty is on the end-user of goods. Thus, it is evident that the appellants have availed the exemption contained in Notification No.06/2006 dated 01.03.2006 only after the receipt of a Certificate issued by the jurisdictional Deputy Commissioner, in charge of their customer. The Department has not got the Certificate nullified/ modified/ withdrawn. Therefore, in view of the settled legal position, the Department has not made out any case for recovery of duty from the appellant - even if it is held that the appellant is not eligible to avail the exemption, their customer is liable to pay duty in terms of the bond. On this count also, duty cannot be confirmed on the appellants. The impugned order is not sustainable and the same is set aside - Appeal allowed. - MR. S. S. GARG, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Ms. Krati Singh, Ms. Shreya Khunteta and Ms. Gulrukh Kaur Sindhu, Advocates for the Appellant Shri Ravinder Jangu, Authorised Representative for the Respondent ORDER M/s Walco Engineering Limited, the appellants, are engaged in the manufacture of cooling towers, doors, wall panels, ceiling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Corpn. (P) Ltd.- 2008 (229) ELT 521 (Mad.). (vi) Satyam Paper Products Polymers P. Ltd.- 2016 (340) ELT 206 (Tri. Hyd.) (vii) R.K. Machine Tools Ltd. 2000 (124) ELT 794 (Tri.). 4. Learned Counsel further submits that the learned Commissioner has erred in holding that in view of the self-assessment procedure, the appellant was responsible for verifying the descriptions of the goods and the eligibility thereof for exemption before effecting clearance; learned Counsel submits that the responsibility of departmental authorities cannot be shifted to the assessee as held in Birla VXL Ltd.- 2005 (179) ELT 285 (Tri. Del.) and Sri Venkateswara Non-Ferrous Foundry- 2000 (124) ELT 572 (Tri.). 5. Learned Counsel further submits that even on merits, the contention of the Department is incorrect as the impugned order incorrectly holds that exemption notification mentions only walk-in-freezer and walk-in-cooler and does not contained the pre-fab enclosures or parts thereof; learned Counsel submits that in terms of Rule 2 (a) of the General Rules of Interpretation of Tariff any reference in a heading to an article shall be taken to include a reference to that article incomplete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r List 4 of the Notification and therefore, the said exemption is not available whereas the appellants claim that they have cleared the goods on the basis of a Certificate given by the Deputy Commissioner of Central Excise having jurisdiction over their customer M/s Natura Green Foods Products Private Limited. They have received a copy of the said Certificate issued in terms of Rule 3 ibid and have also intimated the authorities as per the requirement of Rule 4. The appellants further contended that without cancelling the Certificate issue, the Department cannot recover duty denying the exemption. Moreover, recovery of duty, if any, should be from their customer who has undertaken to pay duty in terms of the said Rules and have also furnished a bond to that effect. The appellants also submit alternatively, that the items manufactured by them are classifiable as walk-in-freezers/ coolers in terms of Rule 2(a) of Interpretation Rules to the Central Excise Tariff. 9. We find that this Tribunal in the case of Teknik Plant Machinery Mfg. Co. P. Ltd.-. (supra) held that: 8 . Coming to the next issue (ii) regarding Annexure I . It is seen that the Annexure has been signed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court of Madras in the case of Madurai Power Corpn. (P) Ltd. v. Deputy Commr. of C. Ex. Madurai-I [2008 (229) E.L.T. 521 (Mad.)]. The judgment dealt with a case where show cause notices were issued without challenging the validity of Annexure or without cancellation of the Annexure. It was held by the Hon ble High Court of Madras : In our opinion, there is no nexus between Section 11A and Section 35E. Section 11A does not indicate that the Legislature intended to override Section 35E. Both sections have to be read harmoniously. In the present case, Annexure-I certificate has been issued in favour of the petitioners from time to time on executing B-8 security bond and on furnishing a bank guarantee. The department has to follow the procedure under Section 35E for setting aside the Annexure-I certificate. Unless, the Annexure-I certificate is cancelled or rejected by the competent authority, by following the procedure under Section 35E, it is not permissible for the respondents to invoke Section 11A of the Act. Therefore, we are of the considered opinion that the issuance of show cause notices are without jurisdiction and liable to be struck down. In the case of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided that if the subject goods on receipt are found to be defective or damaged or unsuitable or surplus to the needs of the manufacturer, he may return the subject goods to the original manufacturer of the goods from whom he had obtained these and every such returned goods shall be added to the non-duty paid stock of the manufacturer of the subject goods and dealt with accordingly. Explanation. - For the removal of doubts, it is hereby clarified that subject goods shall be deemed not to have been used for the intended purpose even if any of the quantity of the subject goods is lost or destroyed by natural causes or by unavoidable accidents during transport from the place of procurement to the manufacturer s premises or from the manufacturer s premises to the place of procurement or during handling or storage in the manufacturer s premises. From the above Rules, it is absolutely clear that under the provision of Concessional Duty Rules, [2001] the recovery of duty shall be made only from the user manufacturer and not by the supplier manufacturer, therefore taking into consideration the provisions of Rule 6 and the obligation of the buyer for execution of the bond, we are of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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