9911796707
TMI Blog2008 (2) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... d only by reversing and recording reverse categorical finding of fact by the Tribunal. – there is no finding by tribunal on material issues - we allow the appeal and set aside the impugned order of Tribunal. - the case is remanded to Tribunal for deciding the appeal on merits X X X X Extracts X X X X X X X X Extracts X X X X ..... the above said clearance (as detailed in enclosed annexure-A) it appears that Noticee have claimed exemption from whole of the duty of Excise under Notification No. 64/95 dt. 16-3-95. 3. Notification No. 64/95 dated 16-3-95 as amended time to time provided exemption of duty if goods are supplied as stores for consumption on board a vessel of the Indian Navy. It appears that the goods supplied by the notice are not meant for consumption on board a vessel of the Indian Navy. These goods are in nature of construction material and hence not meant for consumption on board a vessel and therefore exemption under Notification No. 64/95 dt. 16-3-95 is not admissible to the notice. Moreover, invoice as mentioned at Sr. No. 2 to 5 in Annexure-A were not issued to Indian Navy, therefore, duty exemption under Notification No. 64/95 dt. 16-3-95 is not available on that consignment." 7. The appellant (assessee) replied to both the show cause notices vide their common reply 25-11-02 (Ann.-5). According to appellant, they cleared the goods by rightly not paying any excise duty i.e., Nil rate on the strength of exemption Notification 64/95. It was their case that they supplied the goods to Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paints & Allied Products (supra) wherein it has been held that the expression "on board the vessel" would apply in respect of supplies made to a ship already in existence and accordingly the Tribunal denied the benefit under Notification No. 64/95 as in that case the supplies were made to the Indian Navy in connection with a ship which was under construction. Hence, it has to be construed that any supplies made to the Indian Naval Ships would be eligible for exemption under Notification No. 64/95 provided the goods so supplied are meant for consumption on Board such vessel of Indian Navy. The appellants have submitted certificates issued by authority of Indian Navy wherein it was confirmed that the goods in question were supplied to them "as stores for consumption on Board vessel of Indian Navy". Accordingly the demand confirmed by the Assistant Commissioner in respect of supplies made indirectly to Indian Navy vide his order dated 25-11-02 is not sustainable. I also find from the submission of the Appellants that one of consignments cleared by them to R&D intuition under Notification No. 10/97 has also been included in the demand is factually correct and the demand to this extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent (Revenue) supported the imputed order. 13. Having heard the learned counsel for the parties and having perused the record of the case, we are inclined to allow the appeal and while setting aside of the impugned order, remand the case to Tribunal for deciding the appeal afresh on merits as indicated infra. 14. In our considered view, it was necessary for the Tribunal to have recorded a categorical finding of fact as to whether allegations levelled in 2 show cause notices (referred supra) are made out at the instance of Revenue or not before the appeal of Revenue was allowed. When the specific allegation on facts is made by Revenue against the assessee in the show cause for denying to assessee the benefit then there has to be a categorical finding recorded by the Tribunal one way or the other on this issue. It is only then one can decide as to whether assessee rightly claimed exemption or not? In other words, in order to come to a conclusion as to whether assessee has on facts complied with the requirement of exemption notification or not the Tribunal has to record a categorical finding of fact namely whether goods in question were supplied to Indian Navy by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this appeal because it involves factual controversy raised by the parties in show cause as also in its reply and now in appeal. This requires fresh look by the Tribunal for deciding the issue as a mixed question of fact and law. Had it been only issue of law, one could have invoked powers available under Section 35(H)(6) ibid. Such does not appear to be a case of that nature when we see the whole factual controversy. We also feel that remand of the case to Tribunal would not cause any prejudice to both parties. On the other hand, it will enable both the parties to present their case in proper perspective before the Tribunal on facts and at law for recording definite finding on all issues. Either party depending upon the out-come of appeal may again approach to this court in appeal. This court would then be in a better position to decide the appeal because of categorical findings of Tribunal recorded in their order on facts either way. 17. Since, we have formed an opinion to remand the case for the reason mentioned supra to Tribunal, we do not wish to express any opinion on any of the points urged on merits except to take note of the same to show their relevancy and how it arises ..... X X X X Extracts X X X X X X X X Extracts X X X X
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