Commissioner of Central Excise Vs. Siemens Ltd.

Commissioner of Central Excise vs Siemens Ltd.

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Aug 13, 2004

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Citation: sooperkanoon.com/36235
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: S T S.S., T Anjaneyulu
Decided On: Aug 13, 2004
Subject: Excise

Case Summary

AI-generated summary - not the official court judgment text.

Excise

Key legal issue: Excise

Parties & Advocates

Appellant / Petitioner

Commissioner of Central Excise

Respondent

Siemens Ltd.

Legal References

Reported In: (2004)(173)ELT41Tri(Mum.)bai

Excerpt

.....pleased to confirm the demand of rs. 1,51,93,258/- made vide scn. the appellants in terms of the above 01o dated december 20, 1996 debited the said amount of rs. 1,51,93,258/- by pla entry no. 2500, 2501 and 2502 under protest and intimated these facts vide letter dated 30.9.98 & thereafter preferred an appeal against the order dated december 20, 1996 before the commissioner of (appeals).2.(a) by his oia the commissioner (appeals) was pleased to set aside the oio dated december 20, 1996 and remand the matter back to the assistant commissioner with directions to reconsider the alternative classification claimed by the respondents.(b) the respondents filed a refund claim of rs. 1,51,93,258/- in terms of order dated january 29, 1998.(c) by his oio no. 228/98 the assistant commissioner was pleased to classify the said plc under chapter heading 85.37 and confirmed the demand of rs. 1,51,93,258/- (d) by his separate oio no. 238/98 the assistant commissioner was further pleased to reject the refund claim filed by the respondents as the demand of rs. 1,51,93,258/- was already confirmed by oio no.228/98.(e) the respondents preferred an appeal against the oio no. 228/98 and oio no. 238/98 before the commissioner (appeals), nasik.(f) by his oia the commissioner of central excise (appeals), in respect of oio no. 228/98 was pleased to remand the matter back to the assistant commissioner of central excise with the directions top reconsider the classification. the commissioner (appeals) was further pleased set aside the oio no. 238/98 and inter alia allowed the refund claim filed by the appellants.(g) the department preferred the present appeal before this hon'ble appellate tribunal against the oia dated september 16, 2003 to the extent it allowed the refund claim filed by the respondents. (a) the amount paid to the government account vide letter dated 30.9.1998 covering the amount vide 3 show cause notices issued by sup rentendent central excise range nasik hi was.....

Full Judgment

1. Herein assessee, of Central Excise, classified programmable Logic Controllers (PLC) under chapter 84.71 of the Central Excise Tariff Act and paid 10% basic excise duty + 5% special excise duty. The Assistant Commissioner by his order classified the PLC under chapter No. 85.37 interalia demanding 15% basic duty + 5% special duty. The assessee preferred an Appeal before the commissioner of Central Excise (Appeals) against the said order passed by the Assistant Commissioner. Three different SCNs were issued to the assessee inter alia demanding a differential duty of Rs. 1,51,93,258/- on the basis of OIO dated June 5, 1996. By his OIO the Assistant Commissioner of Central Excise was pleased to confirm the demand of Rs. 1,51,93,258/- made vide SCN. The appellants in terms of the above 01O dated December 20, 1996 debited the said amount of Rs. 1,51,93,258/- by PLA entry No. 2500, 2501 and 2502 under protest and intimated these facts vide letter dated 30.9.98 & thereafter preferred an Appeal against the Order dated December 20, 1996 before the Commissioner of (Appeals).

2.(a) By his OIA the Commissioner (Appeals) was pleased to set aside the OIO dated December 20, 1996 and remand the matter back to the Assistant Commissioner with directions to reconsider the alternative classification claimed by the Respondents.

(b) The Respondents filed a refund claim of Rs. 1,51,93,258/- in terms of Order dated January 29, 1998.

(c) By his OIO No. 228/98 the assistant Commissioner was pleased to classify the said PLC under chapter heading 85.37 and confirmed the demand of Rs. 1,51,93,258/- (d) By his separate OIO No. 238/98 the Assistant commissioner was further pleased to reject the refund claim filed by the Respondents as the demand of Rs. 1,51,93,258/- was already confirmed by OIO No.228/98.

(e) The Respondents preferred an Appeal against the OIO No. 228/98 and OIO No. 238/98 before the Commissioner (Appeals), Nasik.

(f) BY his OIA the Commissioner of Central Excise (Appeals), in respect of OIO No. 228/98 was pleased to remand the matter back to the Assistant Commissioner of Central Excise with the directions top reconsider the classification. The Commissioner (Appeals) was further pleased set aside the OIO No. 238/98 and inter alia allowed the refund claim filed by the Appellants.

(g) The Department preferred the present Appeal before this Hon'ble Appellate Tribunal against the OIA dated September 16, 2003 to the extent it allowed the refund claim filed by the Respondents.

(a) The amount paid to the Government account vide letter dated 30.9.1998 covering the amount vide 3 Show Cause Notices issued by Sup rentendent Central Excise Range Nasik HI was intimated follows "Please note that we have filed an appeal against aforesaid order in original with Commissioner of Appeals, Pune. However the above differential duty amount has been debited by us through PLA UNDER PROTEST under the provisions of Rule 223 B of Central Excise 1944." The payment therefore has been made for no protest but as been made to enable the appellant to file an appeal in Commissioner Appeal Pune. The reliance of the Ld advocate for the application on Section 35 F of the Central Excise Act stipulating the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied has a force to conclude that payments were made in nature of deposit to enable this appeal and are not payments of duty. Therefore the bar of Section 11 B, for it is consequent refund, will not be applicable b) In this view of our findings we don't consider any need to arrive at the applicability of the decision in the case 2004 163 ELT 401 relied (sic) deposit made under Section 35 F of the Central Excise Act & are required to be returned as per the order of the Board vide F no 275/37/2K-CX8A 2.1.2002, with filing of a refund application.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Commissioner of Central Excise vs Siemens Ltd. Same Subject Excise Same Judge S T S.S., T Anjaneyulu