case details urgently needed

DEAR MADAM,

Can you please provide me entire text of the judgement .I wanted to know exact reason behind the jusdgement and whole isue of case.

waiting for your favourable reply .

Regards,

Gargi

Desired case references are given below. Seems you have wrongly mentioned the 4th case reference. You can also get ful text of the cases in EXCUS CD.

Regards,

A Ravindra Babu

S/Shri M.V. Ravindran, Member (J) and M. Veeraiyan, Member (T)

INOX AIR PRODUCTS LTD.

Versus

COMMISSIONER OF C. EX., RAJKOT

Final Order Nos. A/97 & 98/2007-WZB/Ah'bad, dated 21-12-2006 in Appeal Nos. E/928 & 1060/2002

Export Oriented Unit - DTA clearance - Exports, calculation of export value under Notification No. 2/95-C.E. - Deemed exports value includible while computing FOB value of export. [2006 (194) E.L.T. 344 (Tribunal) followed)]. [para 5]

Export Oriented Unit - 100% EOU - DTA clearance duty free, to Advance Release Holder, under Notification No. 82/92-C.E. - No requirement under notification for permission of Development Commissioner for clearance of final product to Advance Release Holder - Assessee had permission to clear goods to DTA - Benefit of notification not to be denied. [para 5]

CASES CITED

Amitex Silk Mills Pvt. Ltd. v. Commissioner — 2006 (194) E.L.T. 344 (Tribunal) — Followed.............................................................................. [Paras 3, 5]

Swen Industries v. Commissioner — Final Order Nos. A/142-143/2006-WZB/Ah'bad, dated 31-10-2006 — Referred........................................... [Para 3]

REPRESENTED BY :             Shri J.C. Patel, Advocate, for the Appellant.

Shri Samir Chitkara, DR, for the Respondent.

[Order per : M.V. Ravindran, Member (J)]. - These two appeals are filed by the assessee and the revenue against the same order-in-appeal dated 31-12-2001. Since both the appeals are arising out of the same order in appeal, they are being disposed of by a common order.

2. The relevant facts that arise for consideration are that the appellant/assessee in this case is a 100% EOU, manufactures disposable gas cylinder. During the period January to December 2000 the assessee cleared scrap arising out of the manufacture of disposable gas cylinder under the provisions of Notification No. 2/95-C.E., dated 4-1-1995 as amended. The appellant assessee also cleared the final product i.e. disposable gas cylinder to the Domestic Tariff Area (DTA) under the provisions of Notification No. 82/92-C.E., dated 27-8-92 to an Advance Release Holder. Show cause notice was issued to the appellant/assessee directing to show cause as to why the demand of duty demand be raised against them on the ground that the clearances made by them under Notification No. 2/95 is not eligible to them since the deemed export cannot be considered as physical export and hence the clearance should be without any exemption as accorded by the Notification No. 2/95, and Notification No. 82/92 is not applicable as no permission is obtained from the Development Commissioner for clearance of the finished goods to DTA. The adjudicating authority confirmed the demand. On appeal, the Commissioner (Appeals) set aside the demand on that part which denied the eligibility of Notification No. 2/95 but upheld the demand under Notification No. 82/92. Hence this appeal by the assessee. The department is against that part of the order which gave relief to the assessee under Notification No. 2/95.

3. Learned Advocate appearing on behalf of the appellant assessee submits that as regards the Notification No. 2/95, the issue is now squarely covered by the order of the Tribunal in the case of Amitex Silk Mills Pvt. Ltd. v. C.C.E., Surat-I, 2006 (194) E.L.T. 344 (Tri-Del), which is followed by the Division Bench of this Tribunal in the case of Swem Industries v. C.C.E., Surat in Final Order Nos. A/142-143/WZB/Ah’bad/06 dated 31-10-06. As regards the Notification No. 82/92, it is his submission that the Notification No. 82/92 does not envisage any prior permission from the Development Commissioner. His alternative submission is that despite this, they have permission from Development Commissioner to clear the final product to DTA.

4. Learned SDR on the other hand submits that the provision of Notification No. 2/95 envisages the calculation of export value as physical export and not deemed export. It is his submission that in the case of deemed export, there is no physical export and hence cannot be considered for calculation of FOB value, exported to appellant assessee. As regards the Notification No. 82/92, he submits that there is no permission which is brought on record by the appellant assessee’s company  before the lower authorities.

5. Considered the submissions made at length by both sides and perused record. As regards the calculation of export value of the appellant assessee company under Notification No. 2/95-C.E. dated 4-1-95, we find that the issue is now squarely covered by the decision of the Tribunal in the case of Amitex Silk Mills Pvt. Ltd. (supra).The question before the Tribunal in that case was whether the appellant was entitled to include the value of the deemed export for the total FOB value, for calculating the entitlement of clearances to DTA. The Bench held as under :

22. The provision itself makes no distinction among various types of exports. It refers to ‘exports’. Therefore, the terms of the provision, per se, does not call for exclusion of any exports. Deemed exports have all the elements of exports, inasmuch as they are also against competitive international tendering and payment is in foreign exchange. Therefore, on merits also, there is no justification for not treating deemed exports as exports. Looked at from economic efficiency angle, deemed exports should be given higher weightage, inasmuch as while such exports get the seller the benefit of exports, principally, payment in foreign exchange, the Indian buyer saves on freight and other elements of import costs. Thus, deemed export is a beneficial provision for all concerned. A total win! win situation... The factor which is inhibiting the revenue would appear to be the mention of ‘F.O.B.’ value in the provision. I am of the view that this need not stand in the way. F.O.B. is in contrast to C.I.F. value. In other words, value that excludes freight and insurance payable in connection with the export to another country. A deemed export value does not include freight or insurance. Therefore, it is not an inflated value. It is an F.O.B. value.

23. I find that this issue remains discussed in detail in our earlier judgment in the case of Ginni International Ltd. v. C.E., Jaipur, 2002 (139) E.L.T. 172 (Tribunal) = 2001 (47) RLT 412, I am in respectful agreement with that decision of the Tribunal. Even assuming that Revenue authorities are entitled to determine value independently, they have no reason to exclude deemed exports while computing F.O.B. value of exports, for the reason indicated by me in the earlier paragraph. In these circumstances, revenue was in error in excluding the value of deemed exports while determining the F O.B. value of exports.

It can be seen from the above reproduced paragraphs that the issue of inclusion value of deemed export for calculating total value of exports made by assessee is settled in favour of the appellant-assessee. Hence the challenge by the revenue to that portion of the impugned order is unsustainable and is dismissed. As regards the benefit of Notification No. 82/92 to the appellant/assessee, on perusal of the said notification we find that the said notification talks about clearance of the final product produced or manufactured by a 100% EOU duty free, to Advance Release Holder. On perusal of the said Notification we find that there is no requirement for the permission of the Development Commissioner for clearance of the final product to the Advance Release Holder. Be that as it may be, we find that Development Commissioner vide letter dated July 6, 1999 accorded permission to the appellant/assessee for clearing of “disposable gas cylinders” i.e. finished goods of appellant to DTA. Considering the fact that there is no requirement for permission under Notification and also noticing that the appellant/assessee had permission to clear the goods to DTA, we find that the Commissioner’s finding for denial of benefit of Notification No. 82/92 is not correct and is liable to be set aside.

6. Accordingly, the appeal of the revenue is dismissed and the appeal of the assessee is allowed.

(Dictated and pronounced in the Open Court)

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Ms. Archana Wadhwa, Member (J) and Shri M. Veeraiyan, Member (T)

INOX AIR PRODUCTS LTD.

Versus

COMMISSIONER OF C. EX., RAJKOT

Final Order Nos. A/447-448/2007-WZB/Ah'bad, dated 15-2-2007 in Appeal Nos. E/557 & 558/2003

Rebate - Eligibility for - Goods supplied by EOU, 100% EOU to advance licence holder - HELD : It was case of deemed export by EOU, and they could not claim rebate on raw materials/inputs gone into finished products, for which only exporter of finished goods and not supplier of inputs was entitled - Rule 12 of erstwhile Central Excise Rules, 1944 - Rule 18 of Central Excise Rules, 2002. [para 3]

Export Oriented Units, 100% EOU - Deemed export - They are not equivalent to export for all purposes. [para 3]

CASES CITED

Blue Star Ltd. v. Commissioner — 2003 (155) E.L.T. 322 (Tribunal) — Relied on........................................................................................................ [Para 4]

S.V. Business Pvt. Ltd. v. Commissioner — 2006 (198) E.L.T. 408 (Tribunal) — Relied on........................................................................................ [Para 4]

REPRESENTED BY :             Shri J.C. Patel, Advocate, for the Appellant.

Shri K.J. Sanchej, DR, for the Respondent.

[Order per : Archana Wadhwa, Member (J) ]. - The appellant company is a 100% EOU, who is a manufacturer of disposable gas cylinders and they have supplied to Advance Licence Holder against Advance Release Orders without payment of duty of excise equivalent to additional duty of customs and without payment of duty of excise equivalent to special additional duty of customs. The buyers were eligible to take credit of excise duty equivalent to additional duty of customs. The appellant company claimed refund of central excise duty corresponding to special additional duty of customs paid by them on the excisable goods on the ground that the same was not available to the buyer as Cenvat. The appellant company claimed that the disposable gas cylinders should have been ultimately exported by the Advance Licence Holder and therefore, rebate should be allowed to them. Original authority held the view that as the appellant company has not exported the goods physically out of India, they are not eligible for rebate under Rule 12 of the Central Excise Rules and the Commissioner (Appeals) has endorsed the same view.

 2.Learned DR submits that deemed exports are treated on par with exports only for limited purposes like fulfillment of export obligation  but cannot be held to be export in respect of all purposes under the Customs Act and the Central Excise Act, and therefore, the claim of refund by the appellant company has been rightly rejected by the original authority as well as by the Commissioner (Appeals).

 3.We have carefully considered the rival submissions. Rule 12 empowers the Central Govt. to provide for granting of export benefits. In the present case, admittedly, the appellant company has not directly exported the disposable gas cylinders. If they have directly exported the disposable gas cylinders, they will definitely be eligible for rebate of excisable goods as well as inputs which have gone into the manufacture of disposable gas cylinders. The Advance Licence Holder who procured the gas cylinders, no doubt, shall be eligible for rebate of duty paid on the disposable gas cylinders as and when he exports the finished goods subject to fulfillment of the conditions. In respect of deemed export, the appellant company is, no doubt, entitled to approach the DGFT authorities for payment of terminal benefit of excise for the deemed export. Deemed export cannot be held to be exports for each and every purpose. The right of the exporter for export benefit is not only in respect of inputs excisable exported but also in respect of inputs used in the excisable so exported. The right to claim for benefit of the rebate raw materials/inputs gone into finished product is on the exporter of finished goods and not on the supplier of such inputs.

 4.Such a view has been taken by the Tribunal in the case of Blue Star Ltd. v. Commissioner - 2003 (155) E.L.T. 322 (Tri.) and also in the case of S.V. Businees Pvt. Ltd. v. C.C.E., Thane I, reported in 2006 (198) E.L.T. 408 (T - Mumbai).

 5.In the light of the above, the appeals are rejected.

(Pronounced in the open court on 15-2-2007)

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Dr. S.L. Peeran, Member (J)

SHREYA PETS PVT. LTD.

Versus

COMMISSIONER OF CUS. & C. EX., HYDERABAD-IV

Final Order No. 1076/2008, dated 15-9-2008 in Appeal No. E/9/2008

Cenvat/Modvat - Quantum of - Education Cess - Cenvat credit of Education Cess sought to be restricted to 50% in respect of supplies by 100% EOU - Mumbai Bench of Tribunal in 2008 (225) E.L.T. 513 (Tribunal) held that credit of Education Cess available in full in case of supplies by EOU - Impugned order restricting credit set aside - Rules 3 and 14 of Cenvat Credit Rules, 2004. [paras 1, 3, 5]

CASES CITED

Das and Co. v. Collector — 2000 (121) E.L.T. 275 (Tribunal-LB) — Referred............................................................................................................. [Para 3]

Emcure Pharmaceuticals Ltd. v. Commissioner — 2008 (225) E.L.T. 513 (Tribunal) — Relied on............................................................................. [Para 3]

Jindal Poly Films Ltd. v. Commissioner — 2006 (198) E.L.T. 3 (S.C.) — Referred..................................................................................................... [Para 3]

REPRESENTED BY :             S/Shri Ramakrishna, Advocate and Debasis Ghosh, Cost Accountant, for the Appellant.

Ms. Sudha Koka, SDR, for the Respondent.

[Order (oral)]. - This appeal arises from Order-in-Appeal No. 44/2007-C.E., dated 21-9-2007 filed by the appellants who have been denied the Cenvat credit in respect of Education Cess availed by them on the inputs received from a 100% EOU unit. The short finding given by the Commissioner (A) in Para 5 is noted herein below.

5. The short question that is required to be determined is whether the appellant is entitled for credit of full education cess paid on the goods supplied by the 100% EOU or 50% as stated in Rule 3(7)(a) of Cenvat Credit Rules, 2004. As rightly held by the original authority, the supplier was paying duty under Sl. No. 2 of Notification No. 23/2003 which is an indisputed fact. Hence the appellants would be entitled to credit as per Rule 3(7)(a) of Cenvat Credit Rules, 2004 on the goods cleared by the 100% EOU. In view of the above, I pass the following order :

ORDER

The appeal is rejected.

2. As can be noted from the above findings, the findings are not speaking and does not deal with the question at length as brought out by him in the facts of the case as noted in Paras 3 and 4 including submissions made by the assessee.

3. The learned Cost Accountant submits that the issue is no longer res integra and the Mumbai Bench in the case of Emcure Pharmaceuticals Ltd. v. CCE, Pune - 2008 (225) E.L.T. 513 (Tri-Mumbai) has held that assessee is eligible to take credit of Education Cess over the goods supplied to them by 100% EOU in terms of Rule 3(7)(a) and the provisions of Rule 3(7)(b) of the Cenvat Credit Rules. The learned Vice-President has followed the Larger Bench judgment rendered in the case of Das and Co. v. Collector - 2000 (121) E.L.T. 275 (Tribunal-LB) and also Apex Court judgment rendered in the case of Jindal Poly Films Ltd. v. Commissioner - 2006 (198) E.L.T. 3 (S.C.). The relevant findings in Paras 6 and 7 are reproduced herein below.

“6. According to the Revenue, since Rule 3(7)(a) begins with a non-obstante clause, it overrides the provisions contained in sub-rule (1) and (4) of Rule 3 and, therefore, the only credit available to the appellants in respect of the inputs supplied by EOU will be the amount as specified under the formula given therein. However, this stand is not tenable for the reason that the non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found in the same enactment or some other enactment, and not all provisions contained therein. My view is fortified by the Apex Court’s decision in UOI v. G.M. Kokil - (1984) Supp SCC 196, wherein the Apex Court has held as under :-

“Section 70, so far as is relevant, says “the provisions of the Factories Act shall, notwithstanding anything contained in that Act, apply to all persons employed in and in connection with a factory”: it is well-known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Thus the non obstante clause in Section 70, namely, “notwithstanding anything contained in that Act” must mean notwithstanding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act. In other words, as all the relevant provisions the Act are made applicable to a factory notwithstanding anything to the contrary contained in it, it must have the effect of excluding the operation of the exemption provisions. Just as because of the non obstante clause the Act is applicable even to employees in the factory who might not be ‘workers’ under Section 2(1), the same non obstante clause will keep away the applicability of exemption provisions qua all those working in the factory. The Labour Court, in our view, was, therefore, right in taking the view that because of the non obstante clause Section 64 read with Rule 100 itself would not apply to the respondents and they would be entitled to claim overtime wages under Section 59 of that Act read with Section 70 of the Bombay Shops and Establishments Act, 1948.”

The above decision has been followed by the larger bench of the Tribunal in Das & Co. v. CCE, 2000 (121) E.L.T. 275, holding that a non obstante clause is used where contrary provisions exist. Similar view has been expressed by the apex court in the case of Jindal Poly Films Ltd. v. CCE, 2006 (198) E.L.T. 3 (S.C.) in the context of the Modvat Rules. Rule 3(1) is applicable to all manufacturers or producers of final products or providers of taxable services including 100% EOU. Rule 3(7)(b) allows utilisation of Cenvat credit by all categories of manufacturers or producers of final products or providers of taxable services, including 100% EOU, in respect of AED for payment of AED, NCCD for payment of NCCD, education cess for payment of education cess, etc. Rule 3(7)(b) also opens with the non obstante clause. Therefore, if the interpretation canvassed by the Revenue is accepted as correct, there would have been no question of utilisation of education cess for payment of education cess if the taking of the credit itself, according to the Revenue, is barred by Rule 3(7)(a), and the provisions of Rule 3(7)(b) would, therefore, be rendered redundant.

7. In the light of the above discussion, I am of the view that credit of education cess is admissible to the appellants herein, and accordingly set aside the impugned order and allow the appeal.”

3.1 The learned Cost Accountant taking me to the provisions of law and the citations referred to supra submits that they are eligible to avail the Cenvat credit in respect of Education Cess and hence, he prays for allowing the appeal.

4. The learned SDR reiterates the department’s contentions.

5. On a careful consideration, I find that Mumbai Bench has given a clear cut finding that appellants are entitled to avail 100% credit of Education Cess on the goods supplied to them by a 100% EOU in terms of the above findings. The findings given by the Commissioner (A) is not legal and proper and the same is set aside by allowing the appeal with consequential relief.

(Pronounced and dictated in open Court)

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