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TMI Blog2010 (8) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... e resort to the definition of similar word in some other notification. – Appeal dismissed - E/1135/2005 - 542/2010-EX(PB) - Dated:- 6-8-2010 - Justice R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) REPRESENTED BY : Shri R. Santhanam, Advocate, for the Appellant. Shri B.L. Soni, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - This appeal arises from order dated 20-1-2005 passed by the Commissioner (Appeals), Ludhiana. By the impugned order, the appeal filed by the appellants against the order passed by the adjudicating authority has been dismissed. The Assistant Commissioner, Ludhiana by his order dated 16-1-2004 had confirmed the demand of Rs. 69,216/- against the appellants alongwith the interest thereon and the penalty of equal amount. 2.The appellants were engaged in manufacture of man made processed knitted fabrics classifiable under tariff sub-heading No. 6002.93 of the first Schedule to the Central Excise Tariff Act, 1985. The tariff rate of Central Excise duty for such goods had been prescribed @ 16% ad velorem as basic excise duty plus 8% as additional excise duty. The appellants however, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition of penalty. Further, drawing our attention to Circular No. 680/71/2002-CX., dated 10-12-2002 he submitted that the appellant's factory is a composite mill as has been defined in the said circular which squarely applies to the appellants' case. 4. Without prejudice to the above submissions, the learned Advocate further submitted that even assuming that the appellants are not entitled for the benefit of Notification No. 14/2002, at, least they are entitled for the benefit of Notification No. 6/2002-C.E. (N.T.) dated 1-3-2002 as has been held by the Delhi High Court in the matter of Commissioner of Central Excise v. M.B. Dyers reported in 2010 (253) E.L.T. 402 (Del.). 5. Learned DR on the other hand submitted that the appellant's factory is not a composite mill either within the meaning of the said expression under Notification No. 14/2002-C.E., dated 1-3-2002 or under Notification No. 6/2002-C.E. (N.T.) dated 1-3-2002 as also under Circular No. 680/71/2002-CX, dated 10-12-2002. According to the learned DR, the appellants are not engaged in the process of manufacture of yarn from fibres, which is essential function to constitute a composite mill. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the impugned orders are sought to be assailed was never raised by the appellants before the lower authorities. 9. Certainly, interference in the orders passed by the lower authorities on a ground extraneous to the matter in the sense that the basic facts required to deal with the same having not been pleaded cannot be entertained nor on this ground there could be interference in the orders of the lower authorities. The law in this regard is well settled. 10. Rule 10 of CESTAT Rules, 1982 clearly provides that the appellant shall not, except by leave of the Tribunal, urge or be heard in support of any grounds not set forth in the memorandum of appeal, but the Tribunal, in deciding the appeal, shall not be confined to the grounds set forth in the memorandum of appeal or those taken by leave of the Tribunal under these rules provided that the Tribunal shall not rest its decision on any other grounds unless the party who may be affected thereby has had a sufficient opportunity of being heard on that ground. Rule therefore clearly requires the appellants to confine to the grounds of challenge disclosed in the memo of appeal. Apart from those grounds, the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osite mill unless there is processing of fabrics alongwith spinning of yarn from fibres and there is payment of appropriate excise duty as stated above. 14. Explanation VII(2) of the said notification provides that for the purpose of exemption to processed textile fabrics, specified in the Table against any of the. Sl. Nos. 3, 4, 6, 7, 8, 13 and 16, manufactured by a composite mill (i.e. a manufacturer engaged in processing of fabrics alongwith the spinning of yarn from fibres and weaving of knitting or crocheting of fabrics within the same factory), or by a manufacturer engaged in processing of fabrics alongwith weaving or knitting or crocheting of fabrics within the same factory, the condition specified in column (5) against each of the said respective Sl. Nos. is intended to have been satisfied if the said processed fabrics are manufactured from textile fibres or yarns, as the case may be, on which the appropriate duty of excise leviable under the First or the Second Schedule to the said Central Excise Tariff Act read with any notification for the time being in force or the additional duty of customs leviable under Section 3 of the Customs Tariff Act, 1975, as the case m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be understood in terms of what has been stated in the notification. Neither any addition nor subtraction is permissible. When the notification itself defines the term for the purpose of claiming benefit under notification, it is not permissible to take resort to the definition of similar word in some other notification. 17. The Apex Court in Kohinoor Mills case while dealing with the issue that when yarn was manufactured in spinning department of a composite textile mill and was captively consumed in the weaving department for manufacturing fabrics there from, whether any excise duty was payable on the manufactured yarn prior to 15-7-77 when an earlier notification dated 18-6-77 exempting such yarn from the payment of excise duty was in operation, only because the ultimate fabrics got manufactured from such yarn from 15-7-77 when the earlier notification stood rescinded, and dealing with the Notification No. 132/77 as well as Notification No. 226/77-C.E., dated 15-7-77 and referring to the term composite mill held that "composite textile mill is one which contains two departments among other, namely, spinning and weaving department. 18.For the reasons stated above, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to cenvat credit. The appellant's claim relates to certain exemption in the matter of payment of duties. In case the appellants wants to make any claim based on Notification No. 2/2002 which was issued under Rule 11 of the Cenvat Credit Rules, 2002, the appellants have to file proper claim in that regard by following tire procedure known to law. In case such claim is made, needless to say that the authorities will have to deal with the same in accordance with provision of law. It is too premature for the Tribunal to express any opinion in that regard. 22. Once we find no substance in the claim of the appellants regarding composite mill as rightly submitted by the learned DR, the case stand fully covered by the decision of the Tribunal in the matter of Auro Textile case. 23. The decision in Prem Industries case is of no help to the appellants. In Prem Industries case the dispute was only in respect of quantity of processed knitted fabrics which was manufactured out of grey/unprocessed fabrics purchased from the market which according to the Revenue could not have been treated as duty paid fabrics as Serial No. 14 of the same exemption notification also exempted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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