THE COMMISSIONER OF CENTRAL EXCISE Vs. TANSCHEM LIMITED

JUDGEMENT

(1.) This appeal of the Revenue challenges the order passed by the Customs, Excise & Service Tax Appellate Tribunal dated 5th February, 2013. That order has been passed in three appeals, but the Revenue is essentially aggrieved by the finding in Appeal No. E/2809/2004.

(2.) In this appeal by the Revenue, the Tribunal was called upon to decide the issue as to whether the Commissioner (Appeals) and the Adjudicating Authority were right in the conclusions that they reached. The conclusions that they reached are that the Notifications which were in force at the relevant time enabled the respondent-assessee to avail of the benefits and since the assessee has fulfilled the conditions which have been laid down in the Notifications, there is nothing erroneous of illegal in the act of the assessee.

(3.) Mr. Kantharia appearing for the Revenue in support of this appeal submits that the question of law framed at page 10 paragraph 5(I) is a substantial question of law. He would submit that in the show cause notice, there was a specific allegation that the benefit of exemption under Notification No. 8 of 1997 was not admissible or available as that Notification was amended by Notification No. 7 of 1998 and by another Notification which is more specifically referred in the show cause notice. Mr. Kantharia would submit that in the show cause notice, there is a specific allegation and which is that the assessee has not paid appropriate duty as per Notification No. 8 of 1997 dated 1st August, 1997, as amended by Notification No. 13 of 1998 dated 2nd June, 1998. In terms of this Notification, hundred per cent export-oriented undertakings can clear the finished goods, rejected goods and waste and scrap etc. in domestic tariff area (DTA) which is manufactured wholly and of indigenous raw material. However, by the amendment parties like the assessee are required to pay excise duty equivalent to fifty per cent of the aggregate of customs duty leviable on like goods if imported into India. Mr. Kantharia submits there is a specific entry of fresh mushroom in customs under tariff sub-heading No. 07.27, central excise duty as mentioned above is recoverable under Notification No. 13 of 1998 dated 2nd June, 1998, on the clearance made in the domestic tariff area for the period January 1997 to June, 1997. Mr. Kantharia would submit that this is the precise allegation and the Tribunal failed to take note of the same. If the conclusion is that there were several Notifications in the field and benefit of one of them could have been availed of, then, the correctness of that conclusion requires scrutiny and verification by this Court. That is required because of the failure of the Tribunal to note the amendment to the Notification No. 8 of 1997 relied upon by the assessee. The question, therefore, is whether the Notification is really amended or superseded by a further Notification. The appeal, therefore, be admitted.