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2006 DIGILAW 124 (SC)

Leader Engg. Works v. Commissioner of Central Excise, Chandigarh

2006-02-02

ASHOK BHAN, P.K.BALASUBRAMANYAN

body2006
ORDER : Ashok Bhan, J. These appeals have been filed under Section 35L(b) of the Central Excise Act, 1944 (for short "the Act") impugning the Final Order No. 1501-1504/2000-B dated 29.9.2000 in Appeal No. E/232-235/2000-B passed by the Customs, Excise and Gold (Control Appellate Tribunal, New Delhi (for short "the Tribunal") wherein and whereunder the Tribunal set aside the order passed by the Commissioner(Appeals), Central Excise and Customs (for short "the Commissioner") and denied the benefit of exemption under Notification Nos. 70/77-CE and 64/95-CE. 2. The appellant-assessee is engaged in the manufacture of valves and cocks falling under sub-heading 8481.80. Although the goods manufactured by the appellant are exigible to excise duty but because of the exemption notification No. 70/77-CE dated 7th of 1977 which was in operation till 15th of March, 1995 and the exemption notification No.64/95- CE dated 16th March, 1995, which is still in force w.e.f. 16th March, 1995, issued by the Central Government in exercise of the powers conferred on it by sub-section (1) of Section 5A of the Central Excises and Salt Act, 1944 read with sub-section (3) of Section 3 of the Additional Duties of Excise (Gold of Special Importance) Act, 1957, exempting all goods except cigarettes falling under heading No. 24.03, if supplied as stores for consumption on board a vessel of the Indian Navy. 3. Against the specific orders placed with them, the appellants supplied valves and cocks on the strength of certificates issued by the shipbuilders, i.e., M/s. Garden Reach Shipbuilders and Engineers, Calcutta (GRSE), M/s. Goa Shipyard Ltd, Goa (GSL) and M/s. Mazagon Dock Ltd., Bombay (MDL), certifying that the goods are supplied "as stores for consumption on board a vessel of Indian Navy". 4. The appellant did not pay any excise duty. The appellant was served with nine show cause notices for different periods between September 1994 and April 1996, demanding payment of excise duty on the ground that the shipbuilders were engaged in the manufacture and construction of new ships and also in repair of old ships as well and therefore the goods sold to these companies were not entitled to the benefit under the aforesaid notifications. 5. The authority in original passed two sets of orders; dated 27th of December, 1996 and 16th of April, 1997. 5. The authority in original passed two sets of orders; dated 27th of December, 1996 and 16th of April, 1997. The order dated 27th December, 1996 related to five show cause notices whereas the order dated 16th April, 1997 adjudicated upon the remaining four of them. The authority in original in its original order dated 27th December, 1996 held that the goods supplied to GRSE and GSL were in order and meant for use as stores by the Indian Navy and granted them the benefit under the aforesaid notifications whereas it denied the same in respect of the goods supplied to the MDL. In the order in original dated 16th April, 1997 the authority took the same view and allowed the benefit of the exemption notifications for the goods sold to GRSE and GSL and denied the benefit thereof for the same goods supplied to MDL. 6. The department accepted the said decision and did not challenge the grant of the benefit under the exemption notifications in respect of the goods supplied to GRSE and GSL and denied the benefit for the goods supplied to MDL. Thus, to the extent of the goods supplied to GRSE and GSL, the order attained finality. The department filed appeal against the order granting exemption benefit to the goods supplied to GRSE and GSL, while the assessee appealed against the denial thereof in respect of the goods supplied to MDL. The appeal filed by the assessee was accepted and that of the department was rejected by two separate orders. 7. By Order dated 17th January, 1999 in the appeal filed by the assessee against the order dated 27th December, 1996, the Commissioner partly set aside the order in original dated 27th December, 1996 (which was the order impugned before him) and granted the benefit of the exemption notifications to the assessee in respect of the goods supplied to MDL as well. By the second order dated 20th of October, 1999 in the appeal filed by the revenue against the order dated 16th April, 1997 granting the benefit to GRSE and GSL, the appeal was dismissed while that filed by the assessee against denial of the benefit of the exemption notification to the goods supplied to MDL was accepted. Thus, as per two orders of the Commissioner, the assessee got the benefit of exemption notifications in relation to the goods supplied to all the shipbuilders. Thus, as per two orders of the Commissioner, the assessee got the benefit of exemption notifications in relation to the goods supplied to all the shipbuilders. 8. Strangely enough the revenue did not file appeal against the order passed by the Commissioner dated 17th of January, 1999 and the same attained finality. The revenue challenged the order of the Commissioner dated 20th of November, 1999. The Tribunal accepted the appeal relying upon its earlier decision in Collector of Central Excise, Bombay v. Moosa Haji Patrawala Pvt. Ltd. [ 1999 (114) ELT 620 (T)] . So far as this case is concerned, leaving the question of law open and in the peculiar facts of the present case, we allow these appeals to avoid passing of contradictory and inconsistent orders arising out of the same/similar show cause notices based on the similar set of materials. No costs.