- (1.) By way of this appeal under Section 35-G of the Central Excise Act, 1944 ('the Act'), the appellant-Revenue seeks to question the Final Order dated 3-10-2007 as passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi ('the Tribunal') in Excise Appeal No. 3599/2005-SM(BR) [2008 (222) E.L.T. 210 (Tribunal)] whereby the Tribunal dismissed the appeal preferred by the Revenue and affirmed the order dated 31-8-2005 passed by the Commissioner (Appeal-II), Customs and Central Excise, Jaipur in Appeal No. 488 (HKS) CE/JPR-II/2005.
(2.) Briefly put, the relevant facts and background aspects of the matter are that the assessee Stainless India Limited, Tanawada, Jodhpur had cleared S.S. Flats falling under sub-heading No. 7220.10 of Central Excise Tariff Act, 1985 without payment of duty in terms of the Notification No. 42/2001-C.E. (NT.), dated 26-6-2001 to Rama Sheet Pvt. Ltd. for conversion into S.S. Cold Rolled Patta on job work basis. These S.S. Cold Rolled Pattas were also cleared without payment of duty for manufacture of S.S. Utensils on job work basis to M/s. J.K. Industries, Thane which were ultimately cleared for export by the assessee from the premises of the said M/s. J.K. Industries. It had been the case of the assessee that the requisite permission in this regard had been obtained from the Jurisdictional Deputy Commissioner in terms of the said Notification dated 26-6-2001 read with the Board's Circular No. 106/17/95-CX., dated 2-3-1995. However, the proceedings were initiated against the assessee on the ground that the procedure followed by them was not in terms of the Notification dated 26-6-2001. The Adjudicating Authority observed that the assessee had not procured excisable goods under the relevant provisions and hence, applicability of the provisions of Rule 19(2) and 19(3) as well as Notification dated 26-6-2001 was ruled out; and, accordingly, a demand of Rs. 3,47,356/- was confirmed under the impugned order dated 27-4-2005.
(3.) Aggrieved by the order dated 27-4-2005, the assessee preferred an appeal before the Commissioner (Appeals) and contended that clearance of S.S. Flats took place as per the permission given by the concerned authority; that they had already filed the proof of export in the jurisdictional range office in respect of S.S. Utensils from the premises of M/s. J.K. Industries; and that since the export of S.S. Utensils was not in dispute, therefore, the demand was not sustainable. The learned Appellate Commissioner allowed the appeal by the order dated 31-8-2005 with the following observation and findings :- 8. I have gone through the case records and submissions of the appellants, I find that the following facts are not in dispute : (i) that the goods were removed under Bond with the permission of the department. (ii) that the goods after processing have been cleared for export proof of which have been filed by the appellants. (iii) that as per Board's Circular No. 603/40/2001-CX., dated 29-11-2001 issued in reference to Board's earlier Circular No. 106/17/95-CX., dated 2-3-95, it has been clarified that the manufacturer of chasis may be allowed to furnish bond in behalf of the body builders. 9. Since the goods have been exported, they do not attract any duty as held in the case of Alpha Garments v. C.C.C., New Delhi,1996 86 ELT 600 and in number of case laws relied upon by the appellants, Further, when the facility of execution of bond is available to the manufacturer of the chasis in behalf of the body builders there is no reason to deny it to the manufacturer of the other commodities as provided under the Board's Circular dated 29-11-2001. Therefore, I find lot of forced in the appellants submission and accordingly the impugned Order-in-Original is set aside.;