CARRIER AIRCON LTD. Vs. CCE

JUDGEMENT

(1.) M /s. Carrier Aircon Ltd. has filed this appeal against Order -in -Appeal No. 239/2004 dated 28.6.2004 by which the Commissioner (Appeals) has confirmed the demand of duty amounting to Rs. 3,40,151/ - as they had not produced the reware housing certificate within the time limit specified in Rule 156A(4) of the Central Excise Rules, 1944.

(2.) SHRI R. Krishnanan, learned Advocate, submitted that out of the total duty confirmed, the Appellants are not disputing the duty amounting to Rs. 1,32,363/ - which has also been paid by them and has not been taken into consideration while confirming the duty under the impugned Order. He, further, submitted that the goods involving duty amounting to Rs. 38,432/ - had been cleared by them without payment of duty to the hospitals in respect of which there is no requirement of producing the re -warehousing certificate; that the Commissioner (Appeals) himself has not confirmed such demand in his earlier Order -in -Appeal No. 964/2001 dated 21.11.2001; that accordingly duty in respect of supplies made to the hospitals is not liable to be paid for non -submission of re -warehousing particulars. Regarding remaining amount of duty the learned Advocate mentioned that the goods were supplied by them to the 100% E.O.U. in respect of which they have submitted the re -warehousing particulars after the stipulated period of 90 days; that the delay in obtaining the re -warehousing certificate cannot stand in the way of accepting the fact of re -warehousing; that the spirit of the Rule is that the goods cleared without payment of duty against CT -3 should be warehoused and the period prescribed for this purpose cannot be so strictly construed as to deny the benefit of factum of warehousing.

(3.) WE have considered the submissions of both the sides. As the Appellants are not disputing the demand of duty amounting to Rs. 1,32,363/ - the same is upheld. The Revenue has not rebutted the contention of the Appellants that the Commissioner (Appeals) has allowed the clearance of the goods to the hospital without payment of duty and re -warehousing particulars are not to be submitted for such supplies. However, we observe that the material brought on record does not indicate that the goods involving duty amounting to Rs. 38,432/ - were supplied to the hospitals, etc. This fact has to be determined by the Adjudicating Authority. We, therefore, remand the matter pertaining to the goods involving duty of Rs. 38,432/ - to the Adjudicating Authority for re -examining and deciding the matter as to whether these goods were supplied to the hospital.