2017 (4) TMI 334 - SC - Central Excise

Cement - benefit of N/N. 50/2003 - exemption on cement in terms of the N/N. 50/2003 had not been granted to the appellant despite the fact that the appellant had started commercial production of clinker, one of the items manufactured by it, in its manufacturing unit prior to the due date, namely, 31st March, 2010 - Held that - if the appellant had placed the Circular dated 26th April, 2012 or any other such circular before the learned Tribunal, as asserted, the appellant may move the learned Tribunal by way of review. The learned Tribunal, after hearing the parties may pass such order as it may deem fit - appeal allowed by way of remand.

Summary

Issues involved:
Exemption on cement under Notification No. 50/2003 despite commercial production of clinker, Interpretation of circulars affecting exemption eligibility.

Analysis:
The appellant contended that despite starting commercial production of clinker before the due date, exemption on cement under Notification No. 50/2003 was not granted. The Customs, Excise & Service Tax Appellate Tribunal (Tribunal) held that even if commercial production of a non-exempted item like clinker began before the due date, it does not entitle the appellant to claim exemption for cement if its production started after the due date. The Tribunal dismissed the appeal based on this interpretation.

During the hearing, the appellant's Senior Counsel highlighted circulars, including one from April 26, 2012, stating that even if commercial production of a non-exempted item commenced before the due date, exemption under Notification No. 50/2003 should still be granted for exempted items. The appellant claimed these circulars were presented to the Tribunal.

The Revenue's representative argued that the circular from April 26, 2012 was not raised before the first appellate forum or mentioned in the appeal memo before the Tribunal, despite its existence when the Commissioner (Appeals) issued the order in December 2012.

The Court declined to engage in the controversy but suggested that if the appellant indeed submitted the circular from April 26, 2012 or similar circulars to the Tribunal, they could seek a review. The Tribunal would then hear both parties and make an appropriate decision. The Court disposed of the appeal with this guidance, emphasizing that they had not expressed any opinion on the case's merits.