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Commissioner of Central Excise, Pondicherry Vs. Varun Industries - Court Judgment

SooperKanoon Citation

Court

Customs Excise and Service Tax Appellate Tribunal CESTAT Chennai

Decided On

Case Number

Appeal No.E/564 of 2003 & E/CO/4 of 2004

Judge

Appellant

Commissioner of Central Excise, Pondicherry

Respondent

Varun Industries

Advocates:

Shri V.V.Hariharan, JCDR. Shri J.Shankararaman, Advocate

Excerpt:


.....the adjudication order was set aside. 2. after hearing both sides and on perusal of the records, we find that the respondents are engaged in the manufacture of shampoo, herbal shampoo etc. classified under chapter 33 of the schedule to the central excise tariff act, 1985. they availed the benefit of exemption notification no.140/83-ce dt. 5.5.83 as amended and notification no.10/99-ce dt. 28.2.99 on the branded goods for the period 30.6.98 to 31.3.2000. they cleared the final products which bear the symbol and name of the hotels as per the order and it is manufactured for the hotel industry. original authority confirmed the demand of duty and imposed penalty. commissioner (appeals) set aside the adjudication order following the decision of the tribunal in the case of model soap co. vs cce 1998 (98) elt 622 (t). he has also followed board’s circular no.71/71/94-ce dt. 27.10.94 [1994 (74) elt t.24]. it is contended that the goods are consumed by the hotels and it is not traded by them and, therefore, restriction under notification would not apply to the goods cleared to the hotels. the ld. jt. cdr submits that the hon’ble supreme court in the case of kohinoor elastics.....

Judgment:


Per P.K.Das

Revenue filed this appeal against the order of Commissioner (Appeals) wherein the adjudication order was set aside.

2. After hearing both sides and on perusal of the records, we find that the respondents are engaged in the manufacture of Shampoo, Herbal shampoo etc. classified under Chapter 33 of the Schedule to the Central Excise Tariff Act, 1985. They availed the benefit of Exemption Notification No.140/83-CE dt. 5.5.83 as amended and Notification No.10/99-CE dt. 28.2.99 on the branded goods for the period 30.6.98 to 31.3.2000. They cleared the final products which bear the symbol and name of the hotels as per the order and it is manufactured for the Hotel Industry. Original authority confirmed the demand of duty and imposed penalty. Commissioner (Appeals) set aside the adjudication order following the decision of the Tribunal in the case of Model Soap Co. Vs CCE 1998 (98) ELT 622 (T). He has also followed Board’s Circular No.71/71/94-CE dt. 27.10.94 [1994 (74) ELT T.24]. It is contended that the goods are consumed by the hotels and it is not traded by them and, therefore, restriction under notification would not apply to the goods cleared to the hotels. The ld. Jt. CDR submits that the Hon’ble Supreme Court in the case of Kohinoor Elastics Pvt. Ltd. Vs CCE Indore, [2005 (188) ELT 3 (SC)] held that even if a manufacturer only manufacturers as per orders of customer and delivers only to that customer, the course of trade, for him is such manufacture and sale, SSI exemption would not be extended for the branded goods.

3. We find force in the submission of the ld. Jt. CDR. In our view, the matter is required to be examined in the light of the decision of the Hon’ble Supreme Court (supra). In view of that, the impugned order of the Commissioner (Appeals) is set aside. The matter is remanded back to the original authority to decide afresh after considering the decision of the Hon’ble Supreme Court and the Tribunal in accordance with law. Needless to say that the original authority shall give reasonable opportunity of hearing before decision. Cross objection is disposed off.




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