Danke Products Vs. Commissioner of Central Excise

Danke Products vs Commissioner of Central Excise

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Apr 26, 2005

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Citation: sooperkanoon.com/38859
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: A Wadhwa, S T S.S.
Decided On: Apr 26, 2005
Subject: Excise

Case Summary

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

Excise

Key legal issue: Excise

Parties & Advocates

Appellant / Petitioner

Danke Products

Respondent

Commissioner of Central Excise

Legal References

Reported In: (2005)(186)ELT215Tri(Mum.)bai

Excerpt

.....as detailed in the annexure to the show cause notice were alleged to removed without levy of duty and penalty proposal were made out. c) the finding of the additional commissioner, that the product transformer are apparatus and covered under provisions of exemption of notification 10/97 dated 1.3.97 at item (a) under sr. no. 3 in the table and there after denial of the benefit of the exemption by holding that the certificate has to be issued by the concerned department in the name of the manufacturer & since in this case neither the name of the manufacturers nor the goods intended to be produced are mentioned in the certificate denial be upheld.2. from the copy of the order placed by the institute for plasma research, it is found that the institute has certified that the goods in respect of which exemption from exemption duty was claimed under this notification were required for research purpose and the certificates are issued as by a dy. secretary (adm.) of atomic energy commissioner. the research institute has also produced material of actual receipt and use of the item. we therefore found no reason to denial. the scientific and technical instruments and apparatus, equipment is not defined in the notification to restrict its scope to certain such use. when the transformer in part in use by an accredited research institute of atomic energy commissioner, the benefit of the same cannot be denied on the grounds as arrived at by the lower authorities. intended use is also use as held by the apex court, therefore actual use after receipt at the institute in this case has to be held to be eligible to the benefit.3. we therefore, set aside the orders and direct the benefit of exemption be granted, in the facts of this case.

Full Judgment

1. After hearing both sides and considering the issue involved, it is found":- a) The appellant are aggrieved by the denial of benefit of notification on the supply made of transformer vide purchase order dated 6.7.2000 to Institution For Plasma Research Gandhinagar. The institute to whom the goods were supplied had sent a certificate issued by the Deputy Secretary Department of Atomic Energy, Government of India, to the effect, that said institute is an autonomous research institute under the administrative control of Department of Atomic Energy and is eligible for excise duty exemption under Department of Revenue notification No. 10/97 (CEX) dated 1.3.97 The goods were supplied as per the certificate issued by the Deputy Secretary (Adm.) of Department of Atomic Energy dated 27.3.2000. Similarly, goods were supplied on three other such certificates dated 19.12.2001, 25.2.2002 & 20.3.2002 upto 5.7.2002; no objection regarding this clearance were raised by Revenue.

b) A Show Cause Notice dated 5.7.2002 was issued by the Additional Commissioner of Central Excise & Customs, Vadodara alleging : i) On perusal of Not. No. 10/97 dated 1.3.1997, it is revealed that transformers does not fall under the type of goods covered by the said notification as Not. No. 10/97 dated 1.3.97 which grants exemption from payment of excise duty on excisable goods viz., a) Scientific and technical instruments, apparatus, equipments (including computers) b) Accessories spare parts of goods specified in (a) above and consumables.

c) Computer software, compact disc-read only, only memory (CD-ROM) recorded magnetic tapes, microfilms, micro finches Hence the duly exemption availed were sort to be denial, but it is also alleged that the certificate referred to the cost of the item to the extent of Rs. 519630.00 whereas the value of the goods supplied total of Rs. 3369690.00 and goods value at Rs. 539990.00 as detailed in the Annexure to the Show Cause Notice were alleged to removed without levy of duty and penalty proposal were made out.

c) The finding of the Additional Commissioner, that the product transformer are apparatus and covered under provisions of exemption of Notification 10/97 dated 1.3.97 at item (a) under Sr. No. 3 in the table and there after denial of the benefit of the exemption by holding that the certificate has to be issued by the concerned department in the name of the manufacturer & since in this case neither the name of the manufacturers nor the goods intended to be produced are mentioned in the certificate denial be upheld.2. From the copy of the order placed by the Institute For Plasma Research, it is found that the institute has certified that the goods in respect of which exemption from exemption duty was claimed under this notification were required for Research purpose and the certificates are issued as by a Dy. Secretary (Adm.) of Atomic Energy Commissioner. The Research institute has also produced material of actual receipt and use of the item. We therefore found no reason to denial. The Scientific and Technical instruments and apparatus, equipment is not defined in the notification to restrict its scope to certain such use. When the Transformer in part in use by an accredited Research Institute of Atomic Energy Commissioner, the benefit of the same cannot be denied on the grounds as arrived at by the lower authorities. Intended use is also use as held by the apex court, therefore actual use after receipt at the Institute in this case has to be held to be eligible to the benefit.

3. We therefore, set aside the orders and direct the benefit of exemption be granted, in the facts of this case.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Danke Products vs Commissioner of Central Excise Same Subject Excise Same Judge A Wadhwa, S T S.S.