Allowed

thecommissione of central excise-thane-i v. m/s bidhata industries Pvt. Ltd.

Bombay HC21 Jul 2009CEXA/92/2006

Case brief

AI extract

What is this about?

The High Court allowed the appeal, holding that the amended Notification of 1st March 2001 is not optional but mandatory for manufacturers who have availed special procedures under Rule 96ZNA and paid duty under Rule 96ZNC.

What did the court decide?

The question of law is answered in the affirmative in favour of the assessee against the Revenue; Appeal disposed of accordingly.

thecommissione of central excise-thane-i Vs m/s bidhata… — Banking and Recovery | Bombay HC (2009)

¶1

Mgn

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

¶3

CENTRAL EXCISE APPEAL NO.92 OF 2006

¶4

Commissioner of Central Excise & Customs..Appellant

¶5

Vs.

¶6

M/s.Bidhata Industries Pvt. Ltd.

¶7

....Respondent

¶8

Mr. P.S. Jetly with Mr. J.B. Mishra for the Appellant. Mr. Jitu Motwani i/b. P.D.A. Legal for Respondents

¶9

CORAM : F.I. REBELLO & D.G.KARNIK, JJ.

¶10

DATED : 21ST JULY, 2009

¶11

P.C.

¶12

Appeal was admitted on the following question:-

¶13

“Whether the CESTAT is right in setting aside the order-in-Appeal No.CPA/64/TH-I/2004 dated 21.09.2004 when there is no provision in law w.e.f. 01.05.2001 for availment of deemed credit as per para 4A of Notification No.07/2001 Central Excise (NT) as amended by Notification No.17/2001 Central Excise (NT) dated 30.04.2001 where the assessee avails special procedure prescribed under Rule 96ZNA and pays the specified sum of duty in accordance with a notification issued under Rule 96ZNC of the Central Excise Rules, 1944?”

¶14

The Appellants are aggrieved by the order of the learned Tribunal which has taken the view that as the Respondents had cleared the goods available at the end of 30-4-2001/1-5-2001 on payment of ad-valorem duty, the compounded levy scheme would not be applicable to them.

¶15

A Notification came to be issued on 1^st March, 2001. Under this Notification the manufacturer of goods were entitled to avail of deemed credit. A second

¶16

Notification thereafter was notified on 30^th April, 2001 which came into force on 1^st May, 2001. By this Notification in respect of goods which were manufactured or produced prior to 1^st May, 2001 the following provision was made:-

¶17

“96ZNB. Conditions for availing of special procedure.

(1)...........

(2) ..........

(3)...........

(4)..........

(5) .........

(6) .........

(7) Nothing contained in this section shall apply to -

¶25

(a) the said goods which are manufactured or produced prior to the 1^st day of May, 2001 and cleared on or after that date.”;

¶26

Another Notification came to be issued on 30^th April, 2001. This was to amend Notification notified on 1^st March, 2001 which we have referred to earlier. By this Notification after paragraph 4 Para.4A was inserted in Notification of 1^st March, 2001 and the same reads as under:-

¶27

“4A. The provisions of this notification shall not apply to a manufacturer who avails of the special procedure prescribed under Rule 96ZNA and pays the specified slum of duty in accordance with a notification issued under Rule 96ZNC of the Central Excise Rules, 1944.”

¶28

It will thus be clear that Rule 96ZNB provided that goods manufactured between 1^st March, 2001 and 30^th April, 2001 and cleared thereafter the provisions of Rule 96ZNB were not applied. Similarly, by virtue of the amendment the Notification of 1^st March, 2001, if a manufacturer had availed of the specific procedure in terms of the Notification on 30^th April, 2001 and paid the subject sum of duty in terms of Rule 96ZNC, then such manufacturer would not be entitled to

¶29

avail the benefits of the Notification of 1^st March, 2001.

¶30

In the instant case in the show clause notice the appellant themselves have clearly set out that the manufacturer i.e. the respondents herein had paid ad-valorem duty. In other words the manufacturer had not availed of the benefits in terms of para.4A of the Notification dated 1^st March, 2001. A finding to that effect has also been recorded by the Tribunal in the impugned order.

¶31

Once that be the case, we find that the Tribunal correctly addressed itself to the issue in question. The learned Counsel for the Appellants sought to contend that there is difference between manufacture and goods. In our opinion the Notification applied to manufacturer of the goods. In the instant case the respondents are manufacturers of goods. They are covered by the Notification and hence we find no error of law in the judgment of the Tribunal. Consequently, the question of law as framed would not arise.

¶32

In the light of that the question is answered in the affirmative in favour of the assessee and against the Revenue. Appeal disposed of accordingly.

thecommissione of central excise-thane-i v. m/s bidhata industries Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

thecommissione of central excise-thane-i v. m/s bidhata industries Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Parties & counsel

Coram

Case details

Similar cases

The Additional Commissioner of Sales Tax (Vat) 3, Mumbai Vs Maharashtra Metal Powders Ltd., Nagpur

Huundai Motors India Ltd. Vs the State of Maharashtra, Mumbai

M/S.Naraindas Dayaram Vs Union of India and Anr.

the commissioner of cental excise-thane-1 Vs m/s vinayak dyeing works

Ram Kishore Agarwal Vs the Commissioner of Customs