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TMI Blog2019 (1) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... C is binding upon the adjudicating authority. CBEC circular dated 22.12.2010 is binding on Ld. Commissioner and as per the said circular, the appellant is entitled to add new plant and machinery and he can manufacture of new products in terms of Notification No, 56/2003-CE dated 10.06.2003. The ld. Commissioner in the impugned order has observed that the appellant is having another unit and exemption to that unit has been expired on 30.04.2017, therefore, in the guise of addition of new items, the appellant sought addition of the new items - the said observation made by the ld. Commissioner is only assumptive and presumptive as the another unit of the appellant is still in existence. Although, the exemption has been expired but unit is still functionary, therefore, it cannot be said that the unit no. 1 has been transferred to the present unit i.e. Appellant and in the guise of the addition of new products, the appellant is seeking exemption for goods manufactured by the unit no. 1. Further, no show cause notice has been issued to the appellant to deny the exemption sought by the appellant, which would enable to file their counter to the allegation for denial of exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. cosmetics and homeopathic drugs medicaments till 22.03.2020 or not? The appellant filed a declaration on 04.05.2017 for addition of product namely cosmetics and homeopathic drugs medicaments. The said addition of products has been rejected by the Commissioner on the following grounds: (a) The subject unit i.e. M/s Richfeel Health and Beauty Pvt. Ltd. Malpur, Baddi (HP) was not having the license to manufacture cosmetics and homeopathy drugs before 31.03.2010. (b) That while shifting the plant and machinery from Lehi, the party has only declared like blow moulding machines, air compression, weighing scales etc. however, from the records it is seen that apart from the above, the party has added/installed fabricated ETP plant, Homogenizer cream mixing machine, stirrer, bottle filling machine, AHU chilling system etc. which was not available at Lehi village. Therefore, it appears that in the grab of shifting the party has altogether installed a new unit. (c) As per the agreement of assignment of business dated 22.10.2015, the existence of M/s RKS industries at village Lehi to whom area based exemption is available has been remained alive and separate from the subject un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustries Department. There are no separate facilities for the fresh plant and machinery. Most importantly, there is no finding of physical verification to establish the existence of separate new unit. In such a case, the finding of establishing a new unit is imaginary and assumptive being without any evidence in this regard. He further submits that the ld. Commissioner has relied on the decision of this Tribunal in the case of M/s Wipro Emterprises Pvt. Ltd. decided vide Final Order No. A/62164/2017-Ex(DB) dated 11.12.2017. He further submits that in the impugned order the one of the ground denial of benefit of exemption is that in the exemption in unit no. 1 has been expired on 30.04.2017 and also has sought addition of products w.e.f 04.05.2017, therefore, it is presumed by the department that the present unit II is new unit set up in guise of adding new products. It is his submission that the said observation is factually incorrect. In fact, the unit no. 1 still in operation in the state of Himachal Pradesh, although, exemption of that unit under the Notification No. 50/2003-CE dated 10.06.2003 has been expired, therefore, the exemption cannot be denied. He further submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of M/s Wipro Enterprises Ltd. (Supra). He also submits that reliance made by the ld. Counsel on the decision of this Tribunal in the case of Khurana Oleo Chemicals Vs. CCE reported in 2017 (348) ELT 332 (Tri. Chd.), the facts of the present case is identical to the said case. As the said order has been set aside by the Hon ble Apex Court in Civil Appeal No. 831 of 2018 vide order dated 25.07.2018, therefore the appellant is not entitled in the benefit of exemption Notification No. 50/2003-CE dated 10.06.2003 for new products manufactured by the appellant in a separate unit. 5. Heard the parties and considered the submissions. 6. On careful consideration of the submissions made by both the sides, the short issue involved in the matter is that whether the appellant is entitled for benefit of exemption Notification No. 50/2003- CE dated 10.06.2003 for addition of new items namely cosmetics and homeopathic drugs medicaments w.e.f 04.05.2017 till 22.03.2020 or not? 7. The facts which are not in dispute that unit is entitled for exemption under Notification No. 50/2003-CE dated 10.06.2003 for the period of 10 years. There is no dispute with regard to ownership. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alth and Beauty Pvt. Ltd. Malpur, Baddi (H.P) was not having the license to manufacture cosmetics and homeopathic drugs before 31.03.2010. 2. That while shifting the plant and machinery from Lehi, the party has only declared like blow moulding machines, air compression, weighing scales etc. however, from the records, it is seen that apart from the above, the party has added/installed fabricated ETP plant, Homogenizer cream mixing machine, stirrer, bottle filing machine, AHU chilling system etc. which was not available at lehi village. Therefore, it appears that in the grab of shifting the party has altogether installed a new unit. 3. As per the agreement of assignment of business dated 22.10.2015, the existence of M/s RKS industries at village lehi to whom area based exemption is available has been remained alive and separate from the subject unit i.e. M/s Richfeel Health and Beauty Pvt. Ltd. 10. We find that the ld. Counsel for the appellant has heavily relied on the CBEC circular no. 939/29/2010 dated 22.12.2010, which reads as under: 2. Representations have been received from Trade and Industry Associations seeking clarification on the availability of the exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und of the same being inconsistent with the statutory provision. The ratio of the judgment of this Court further precludes the right of the Department to file an appeal against the correctness of the binding nature of the Circulars. Therefore, it is clear that so far as the Department is concerned, whatever action it has to take, the same will have to be consistent with the Circular which is in force at the relevant point of time. 10. It is, thus, evident that the revenue is precluded from challenging the correctness of the circular even on the ground of the same being inconsistent with statutory provisions. It goes further to limit the right of the revenue to file an appeal against the correctness of the binding nature of the circular. Therefore, there is no escape from the conclusion that the circular is binding on the revenue. 12. The same view was taken by the Hon ble High Court of Bombay in the case of M/s Sakoda Auto India Pvt. Ltd. (Supra) wherein the Hon ble High Court observed as under: As per the law declared by the Supreme Court, the Board circulars are binding on the officer including the proper officer of customs. The discretion of such officer i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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