- (1.) In the instant appeal preferred by the Revenue questioning the correctness of order dated 9 -10 -2006 [2007 (208) E.L.T. 178 (Tribunal)] passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'the Tribunal'), the issue is as to whether the Respondent/Assessee is entitled to the benefit of exemption under Notification No. , dated 1 -3 -2002. It is a general exemption Notification and the item with which we are concerned is at Serial No. 196, which reads as under: As is clear from the aforesaid notification, the goods that are exempted from payment of excise duty are agricultural produce which are used for purposes specified therein. In this context the question is as to whether the Assessee's produce is 'agricultural produce'.
(2.) The Assessee is engaged in processing and export of Shrimps/Prawns. Show cause notice dated 17 -11 -2003 was issued to the Assessee stating that it had used the refrigeration compressor for processing/storage of Shrimps/Prawns and since Shrimps/Prawns are not agricultural produce, the Assessee had wrongly availed the benefit of the aforesaid Notification No. The Assessee filed its reply inter alia stating that such a benefit was given to the Assessee on earlier occasion also and there was no reason not to continue the same in respect of the period in question. Accepting this contention the adjudicating authority dropped the show cause notice. However, feeling aggrieved by this order the Revenue took the matter in appeal before the Commissioner (Appeals) who reversed the aforesaid decision of the Adjudicating Authority. Accepting the plea of the Revenue that the product in question viz. Shrimps/Prawns is not agricultural produce but Marine produce which is squarely covered Under Sec. 2(h) of Marine Products Export Development Authority Act, 1972 and on this basis the Adjudicating Authority could not apply the provisions of another Act viz. Andhra Pradesh (Agricultural Products and Livestock) Markets Act, 1966, the Commissioner (Appeals) held as under: I hold that the impugned goods viz., Shrimps/Prawns, squarely covered under the Marine Products Development Authority Act, 1972 and classify the impugned goods as marine produce rather than as agriculture produce. In view of the above discussion, the department's action in demanding duty is just and proper and sustainable under the law. Therefore, the Respondent is liable to pay the Central Excise duty and interest, Under Sec. 11A and Sec. 11AB of Central Excise Act, 1944 respectively, as proposed in the show cause notice dated 17 -11 -2003. Hence, I pass this order: ORDER I hereby confirm the demand of Central Excise duty of Rs. 1,01,670/ - demanded in the show cause notice Under Sec. 11A of Central Excise Act, 1944. I also order for recovery of interest on the demand confirmed as above, Under Sec. 11AB of the Central Excise Act, 1944. Accordingly, the appeal filed by the department is allowed. The Order -in -Original No. 17/2004, dated 30 -8 -2004 is set aside."
(3.) The Assessee took the matter further by filing appeal before the Tribunal and the Tribunal has reversed the decision of the Commissioner (Appeals) holding that the Assessee would be entitled to the aforesaid exemption notification. In coming to this conclusion, the Tribunal has primarily gone by the following two reasons: (a) The Assessee was enjoying the benefit of exemption notification in previous year and there was no reason not to continue the same; (b) In the earlier proceedings, benefit of Notification No. 19/1999 was extended to the Assessee by the order of the Tribunal and the Revenue had accepted the said view of the Tribunal. Therefore, on parity, there was no reason not to continue this benefit in favour of the Assessee.;