Excise Appeal No.138 of 2012
(Arising out of OIA-CS/112/DMN/VAPI-I/2011-12 dated 29/11/2011 passed by
Commissioner of Central Excise, Customs and Service Tax-DAMAN)
Yug Marketing Pvt LtdT
VERSUS
C.C.E. & S.T.-Daman
WITH
Excise Appeal No.10180 of 2020
(Arising out of OIA-CCESA-SRT-APPEAL-PS-286-2019-20 dated 14/08/2019 passed by
Commissioner ( Appeals ) Commissioner of Central Excise, Customs and Service Tax
SURAT-I)
Yug Marketing Pvt Ltd
VERSUS
C.C.E. & S.T.-SURAT-I
APPEARANCE:
Shri Nilesh Suchak, Chartered Accountant for the Appellant
Shri Prakash Kumar Singh, Superintendent (AR) for the Respondent
CORAM: HON’BLE MEMBER (JUDICIAL), MR. RAMESH NAIR
HON’BLE MEMBER (TECHNICAL), MR. RAJU
Final Order No. A/ 10213-10214 /2023
DATE OF HEARING: 07.10.2022
DATE OF DECISION: 07.02.2023
RAMESH NAIR
In the present appeals, the issue involved is that whether the Poly
Vinyl Acetate Emulsion cleared by the appellant is of 1 kg each or 20 kg and whether the same is classifiable under CETH 3905.10 or 35.06 and
consequently liable to duty under Section 4A of the Central Excise Act, 1944.
- Shri Nilesh Suchak, learned Chartered Accountant appearing on behalf
of the appellant at the outset submits that the issue is no longer res-integra
as not only the tribunal but the Commissioner (Appeals) in various cases of
the appellant itself held that goods in question is classifiable under 3905.10
and not under 35.06 accordingly, the present proceedings deserves to be
dropped. He referred to the following orders:-
ORDER-IN-APPEAL NO. NS/95/DAMAN/2005 DATED 25.02.2005
PASSED BY COMMISSIONER (APPEALS) IN OUR OWN CASE.
ORDER-IN-APPEAL NO. NS/96/DAMAN/2005 DATED 25.02.2005
PASSED BY COMMISSIONER (APPEALS) IN OUR OWN CASE.
ORDER-IN-APPEAL NO. KS/382/DAMAN/2006 DATED 30.11.2006
PASSED BY COMMISSIONER (APPEALS) IN OUR OWN CASE. AN
APPEAL (APPEAL NO. E/165/2007) BY DEPARTMENT AGAINST THIS
ORDER IS REJECTED BY HON. TRIBUNAL VIDE ORDER
NO.A/10887/WZB/AHD/2013 DATED 23.07.2013.
ORDER-IN-APPEAL NO. AKP/14/DAMAN/VAPI-I/2009-10 DATED
31.08.2009 PASSED BY COMMISSIONER (APPEALS) IN OUR OWN
CASE. THIS ORDER IS ACCEPTED BY THE DAMAN COMMISSIONERATE
ON 26.11.2009 AS CONFIRMED VIDE LETTER F. NO. V(MISC)/REVIEW
DAMAN/STATUS/18-19/7303 DATED 01.01.2019 AND THE SAID
FACTS ARE CATEGORICALLY STATED IN PARAGRAPH 43 OF ORDER IN
ORIGINAL NO. SURAT/GST/MKM/12/2018-19 DATED 31.01.2019.
CESTAT ORDER NO.A/1585-1586/WZB/AHD/08 DATED 01.08.2008
AND REPORTED AS CCE V. YUG MARKETING PVT. LTD.- 2009 (234)
ELT 141 (TRI.-AHMD.)
CESTAT (TRIBUNAL) ORDER NO. A/10887/WZB/AHD/2013 [APPEAL
NO.E/165/2007] DATED 23.07.2013 IN OUR OWN CASE. THIS ORDER
APPEARS TO BE ACCEPTED BY DEPARTMENT AS THIS APPELLANT HAS
NOT RECEIVED ANY INTIMATION OF APPEAL AGAINST THIS ORDER
TILL 24.09.2022.
- Shri Prakash Kumar Singh, learned Superintendent (AR) appearing on
behalf of the revenue reiterates the finding of the impugned order.
- We have carefully considered the submissions made by both the sides
and perused the records. We find that in the appellant’s own case, the
tribunal has passed the following order:
The appeal is directed against Order-in-Appeal No. KS/382/Daman,
2006, dt. 30.11.2006.
- None appeared on behalf of the respondents, nor is there any
request for adjournment. Since the case is of 2007, we take up the
appeal for disposal in the absence of any representation from the
assesse.
- Filtering out the unnecessary details, the brief facts of the case
are that the respondents herein is a manufacturer of Poly Vinyl Acetate
Emulsion (PVAE) and classified the same under Chapter No. 39 and
cleared the goods in 1 Kg. packing and more than 1 Kg. packing. In this
appeal, we are concerned with the clearances effected by the appellant
which are more than 1 kg. packing. The appellant herein has assessed
the value of the said goods under the provisions of section 4 of the
Central Excise Act, 1944 and it is the claim of the Revenue that the
appellant should have assessed the these clearances under Section 4A of
the Central Excise Act, 1944. The adjudicating authority has held that all
the clearances made by the appellant of PVAE which is more than 1 Kg,
will fall under Chapter 35 and liable to be assessed under Section 4A of
the Central Excise Act, 1944.
- Ld. Commissioner (Appeals) has set aside such order on the
ground that the provisions of Section 4A are not made applicable to the
goods which are classified under Chapter 39 and the quantities of the
final product which is more than 1 Kg, the classification will be under
Chapter 39.
- Ld. Departmental Representative is contesting the issue and
also produces a decision of this Bench in the respondent’s own case as
reported at 2009 (234) ELT 141 (Tri-Ahmd).
- We have perused the records and also considered the
submissions made by Id. Departmental Representative.
- The issue to be decided in this case is whether the
respondent’s product which is more than 1 kg can be classified under
Chapter 39 or Chapter 35.
- On perusal of the show cause notice, we find that the show case notice
in Para 3 specifically talks about the clearances effected by the appellant
of PVAE for the period March, 2005 to June 2005 is in packing of above 1
- If the packing is of above 1 kg, this Bench vide its final order dt.
01.08.2008 has recorded clearly in the respondent’s own case, which is
as under:-
“4. Both sides agree in view of the above circular, there is no dispute of
the legal position. As such, if the retail packs are not more than 1 kg.,
they have to be classified as falling under heading 35. However, if the
retail sale packs are exceeding net weight of 1 kg., the same would be
classifiable under Heading 39. From the impugned orders, neither side
could satisfy us as to whether the retail pack itself is more than 1 kg. or
1 kg. retail packs are cleared in a one single carton so that the weight
increases on account of the number of 1 kg. retail sale packets, in which
case, they will have to be classified under Chapter 35. As such for
clarification of facts, we set aside the impugned order and remand the
matter to the original Adjudicating Authority for fresh decision in the light
of the above circular of the Board, after verifying the factual position.”
9 It can be seen from above that the issue of classification of
the product PVAE weighing more than 1 kg. has to be done under
Chapter 39 is our finding in the respondent’s own case. If that be so, it is
undisputed that the provisions of Section 4A of Central Excise Act, 1944
are not applicable to the product falling under Chapter 34.
- In view of the foregoing, the appeal is rejected as the
judgment of this Bench is covering the issue in favour of the respondent.
In the above decision of the tribunal, Para 4 of the earlier decision dated
01.08.2008 was reproduced. Considering the said decision dated 01.08.2008
in Para 9, it is held that the classification of the product Poly Vinyl Acetate
Emulsion weighing more than 1kg has to be done under Chapter 39. In the
present case, there is a dispute about package that whether the same
should be taken as one pack of 20kgs or twenty packs of 1kg. Even in case
of 1kg, as per the tribunal’s order, the only package which is more than 1kg
will fall under Chapter 39.
4.1 Due to lack of clarity on the issue of packages, in our considered view
the matter should be remitted back to the adjudicating authority for afresh
order after sufficient opportunity to the appellant to establish about the
actual weight of the package and then to decide the classification.
Accordingly, we set aside the impugned order and remand the matter to the
adjudicating authority for passing a fresh order considering the tribunal’s
decision dated 23.07.2013.
- The appeals are allowed by way of remand to the adjudicating
authority.
(Pronounced in the open court on 07.02.2023)
(RAMESH NAIR)
MEMBER (JUDICIAL)
(RAJU)
MEMBER (TECHNICAL)
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