2018 (3) TMI 1055 - HC - Central Excise

Clearance of MS Specials to the water supply projects - benefit of N/N. 47/2002-CE dated 06.09.2002 & N/N. 6/2006-CE dated 01.03.2006 - Whether the ld. CESTAT was right in law in setting aside the demand determined on the basis of non-fulfillment of the conditions of exemption Notification No.47/2002-CE dated 06.09.2002 & Notification No.6/2006-CE dated 01.03.2006 for the clearance of finished goods i.e. MS Specials to the water supply projects without payment of Central Excise Duty? - sub section (3) & (5) respectively of Section 35G of the Central Excise Act 1944. Held that - the Tribunal has rightly observed that t is not the case of the Department that MS Special were supplied somewhere other than projects in hand. The MS Special are connected with the water pipes before they are used sometimes as a bend to divert the flow. When the MS Specials were used in the project pertaining to the water supply then the same is allowable as Department has already allowed in 4 certificates. Hence for technical mistake on the part of the appellant we cannot deny the substantial justice. The production is the same manufacturing and the process is the same and excise duty is liable on the manufacturing merely because in the certificate there is no mention of MS Special the taxing statute will not be different - the view taken by the Tribunal is just and proper and no interference is required. Appeal dismissed - decided against Revenue.

Summary

Issues Involved:
1. Whether the CESTAT was right in law in setting aside the demand determined on the basis of non-fulfillment of the conditions of exemption Notification No.47/2002-CE dated 06.09.2002 & Notification No.6/2006-CE dated 01.03.2006 for the clearance of finished goods i.e. MS Specials to the water supply projects without payment of Central Excise Duty.

Issue-wise Detailed Analysis:

1. Non-fulfillment of Conditions of Exemption Notifications:
The appellant challenged the Tribunal's decision which allowed the appeal filed by the assessee, setting aside the demand determined due to non-fulfillment of the conditions of exemption Notification No.47/2002-CE and Notification No.6/2006-CE. The appellant argued that the assessee did not comply with the conditions stipulated in these notifications, particularly the requirement to produce a certificate issued by the Collector/District Magistrate/Deputy Commissioner confirming that the goods were cleared for the intended use specified in the notifications.

Contentions by the Appellant:
The appellant referred to the specific conditions of the exemption notifications, emphasizing that the certificates issued by the relevant authorities did not mention MS Specials, which were cleared without payment of duty. The appellant argued that the conditions for availing the exemption were not met, citing the Supreme Court's decision in Eagle Flask Industries Limited vs. The Commissioner of Central Excise, Pune, which highlighted the importance of strictly complying with the conditions of exemption notifications.

Observations by CIT (A):
The CIT (A) noted that the assessee cleared MS Specials without payment of duty and without the necessary certificates specifying the intended use of MS Specials. The adjudicating authority observed that the certificates mentioned other pipes but not MS Specials, suggesting that the assessee availed the exemption by mis-stating facts. The CIT (A) found that the assessee did not produce any evidence to counter the facts mentioned in the impugned order and failed to provide the necessary certificates even after being given additional time.

Tribunal's Findings:
The Tribunal observed that MS Specials are a type of pipe, though of smaller length, and should be covered under the reference to MS pipes in the District Collector’s Certificate. It noted that in four out of eight certificates, MS Specials were mentioned, and the Department had granted exemption based on those certificates. The Tribunal concluded that the exemption should be granted for the remaining certificates as well, as MS Specials were used in water supply projects and the Department had already allowed the exemption in similar cases.

High Court's Judgment:
The High Court upheld the Tribunal's decision, stating that the production, manufacturing process, and liability for excise duty were the same for MS Specials and other pipes. The Court emphasized that the taxing statute should not differ merely because the certificates did not explicitly mention MS Specials. The Court found the Tribunal's view to be just and proper, concluding that no substantial question of law arose in the appeal and dismissed it accordingly.