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2018 Supreme(Raj) 607
IN THE HIGH COURT OF RAJASTHAN, JAIPUR BENCH
K.S JHAVERI, VIJAY KUMAR VYAS, JJ.
Commissioner of Central Goods and Service Tax Central Excise - Appellant
Vs.
Bhoorathanam Construction Co (P) Ltd. - Respondent
Central Excise Appeal No. 22 of 2018
Decided On : 13-03-2018
Saurabh Harsh, Siddharth Ranka
For availing benefits under an exemption Notification, the conditions have to be strictly complied with.
Headnote:
CENTRAL EXCISE - EXEMPTION - NOTIFICATION NO. 47/2002-CE AND 06/2006-CE - MS SPECIALS - CERTIFICATE ISSUED BY COLLECTOR/DISTRICT MAGISTRATE/DEPUTY COMMISSIONER - CONDITION PRECEDENT - STRICT COMPLIANCE - DENIAL OF EXEMPTION - JUSTIFIED.
Fact of the Case:
The appellant challenged the CESTAT order allowing the assessee's appeal against the demand determined for non-fulfillment of conditions of exemption Notifications 47/2002-CE and 06/2006-CE for clearance of finished goods (MS Specials) to water supply projects without payment of Central Excise Duty.
Finding of the Court:
The court held that the Tribunal rightly observed that the production, manufacturing, and process of MS Specials and MS Pipes were the same, and excise duty was liable on manufacturing. The mere absence of mention of MS Specials in the certificate issued by the Collector/District Magistrate/Deputy Commissioner did not alter the taxing statute.
Issues: Whether the CESTAT was right in setting aside the demand determined for non-fulfillment of conditions of exemption Notifications 47/2002-CE and 06/2006-CE for clearance of finished goods (MS Specials) to water supply projects without payment of Central Excise Duty.
Ratio Decidendi: The court relied on the Supreme Court decision in Eagle Flask Industries Limited vs. Commissioner of Central Excise, Pune, (2004) 171 ELT 296, which held that for availing benefits under an exemption Notification, the conditions have to be strictly complied with. In this case, the assessee failed to produce the certificate issued by the Collector/District Magistrate/Deputy Commissioner as required under the exemption Notifications, and hence, the denial of exemption was justified.
Final Decision: The appeal was dismissed as no substantial question of law arose.
1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal filed by the assessee.
2. Counsel for the appellant has framed following substantial question of law arising in the appeal :
(i) Whether the ld. CESTAT was right in law in setting aside the demand determined on the basis of non-fulfillment of the conditions of exemption Notification No. 47/2002-CE dated 06.09.2002 & Notification No. 6/2006-CE dated 01.03.2006 for the clearance of finished goods i.e. MS Specials to the water supply projects without payment of Central Excise Duty?
(ii) Any other question of law as the Hon'ble High Court may formulate and decide the same in terms of sub section (3) & (5) respectively of Section 35G of the Central Excise Act, 1944.
3. He has taken us through the contentions raised in the appeal memo which are reproduced as under :
S.No.
Chapter or heading or subheading or tariff item of the First Schedule
Description of excisable goods
Rate
Condition No.
1
2
3
4
5
7
84 or any other Chapter
The Following goods, namely:-
(1) All items of machinery, including instruments, apparatus and appliances, auxiliary equipment and their components/parts required for setting up of water treatment plants;
(2) Pipes needed for delivery of water from its source to the plant and from there to the storage facility. Explanation.- For the purposes of this exemption, water treatment plants includes a plant for desalination, demineralization or purification of water or for carrying out any similar process or processes intended to make the water fit for human or animal consumption, but does not include a plant supplying water for industrial purposes.
Nil
4
"3.3.1. That for ready reference Condition No. 4 of Notification No. 6/2006-CE dated 01.03.2006 is extracted hereunder under :
4. If, a certificate issued by the Collector/District Magistrate/Deputy Commissioner of the District in which the plant is located, is produced to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, having jurisdiction, to the effect that such goods are cleared for the intended use specified in column (3) of the Table.
3.3.2. That for ready reference Condition No. 47A of Notification No. 47/2002-CE dated 06.09.2002 is extracted hereunder under:-
47A. If, a certificate issued by the Collector/District Magistrate/Deputy Commissioner of the District in which the plant is located, is produced to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, having jurisdiction, to the effect that such goods are cleared for the intended use specified in column (3) of the Table.
4. He further contended that in view of Chapter 73 article of iron or steel where the assessee has claimed as under:-
Tariff Item
Description of goods
Unit
Rate of duty
1
2
3
4
7303
Tubes, Pipes and Hollow Profiles, or Cast Iron.
7303 00
Tubes, Pipes and Hollow profiles, of cast iron:
7303 00 10
Rain water pipe
Kg.
12.5%
7303 00 20
Soil pipe
Kg.
12.5%
7303 00 30
Spun pipe
Kg.
12.5%
7303 00 90
Other
Kg.
12.5%
5. Further, according to the Department the entry is as under:-
Tariff Item
Description of goods
Unit
Rate of duty
1
2
3
4
7307
Tube or Pipe Fitting (For Example, Couplings, Elbows, Sleeves), Of Iron or Steel-Cast Fittings :
7307 11
Of non-malleable cast iron:
7307 11 10
Sponge iron cast fittings
Kg.
12.5%
7307 11 20
SG iron cast fittings
Kg.
12.5%
7307 11 90
Other
Kg.
12.5%
7307 19 00
Other
Kg.
