Appeal Nos. E/S/230-234 and 332-336/09 (Arising out of Order-in-Appeal No. 44/2009-C.Ex. to 48/2009-C.Ex. dated, 19th March, 2009 Passed by the Commissioner of Customs, Central Excise and Service Tax (Appeals), Coimbatore). Case: Umesh Pencil Processors Pvt. Ltd. Vs Commissioner of Central Excise, Coimbatore. CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)
| Case Number | Appeal Nos. E/S/230-234 and 332-336/09 (Arising out of Order-in-Appeal No. 44/2009-C.Ex. to 48/2009-C.Ex. dated, 19th March, 2009 Passed by the Commissioner of Customs, Central Excise and Service Tax (Appeals), Coimbatore) |
| Counsel | For Appellant: D.B. Shroff, Sr. Adv. and For Respondents: C. Dhanasekaran, SDR |
| Judges | Chittaranjan Satapathy (T) and P.K. Das (J), Members |
| Issue | Central Excise Tariff Act, 1985; Duty Drawback Rules |
| Citation | 2011 (267) ELT 74 (Tri - Chennai) |
| Judgement Date | October 27, 2009 |
| Court | CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal) |
Order:
P.K. Das, Member (J)., (South Zonal Bench At Chennai)
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The issue involved in these appeals is in a narrow compass and, therefore, all the appeals are taken up for hearing after granting stay.
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The issue involved in these appeals is as to whether "mixture of graphite and clay" used captively in the manufacture of pencil lead would amount to "manufacture". Original authority classified "mixture of graphite and clay" under Chapter Heading No. 68151020 of the Schedule to the Central Excise Tariff Act, 1985 and confirmed demand of duty along with interest and also imposed penalty. Commissioner (Appeals) upheld the adjudication order.
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The learned Senior Advocate on behalf of the Appellant submits that "mixture of graphite and clay" is used captively in the manufacture of pencil lead and further used in the manufacture of pencils. He submits that "pencil lead" and "pencils" classifiable under Chapter 96 of the Tariff Schedule attract "Nil" rate of duty. He submits that "mixture of graphite and clay" has a short life and cannot be marketed and, therefore, it is not excisable. He also submits that both the authorities below accepted that mixture cannot be sold in the market. He further submits that the "mixture of graphite and clay" merely mentioned in Entry No. 242 vide Notification No. 6/02-CE dated, 1st March, 2002 is not sufficient for the excitability of the goods. He relied upon the decision of the Hon'ble Supreme Court in the case of Collector of Central Excise, Vadodara, v. United Phosphorus Ltd. 2000 (117) ELT 529 (SC). He also relied upon the decision of the Larger Bench of the Tribunal in the case of Markfed Vanaspati & Allied Inds. v. CCE, Chandigarh 2000 (116) ELT 204 (Tribunal). He further submits that the identical issue has been decided by the Tribunal in favour of the Assessee in the case of Collector of Central Excise, Bombay v. Camlin Ltd. vide Final Order No. 997/98-D dated, 16th December, 1998. He, further, submits that they are supplying the pencil lead to M/s. Hindustan Pencils Ltd. and in the case of M/s. Hindustan Pencils Ltd., the Additional Commissioner of Central Excise, Mumbai-III vide adjudication Order No. 6/KPS/2000 dated, 22nd November, 2000 dropped the proceedings against which no appeal was filed by the Revenue as per his information.
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The ld. SDR on behalf of the Revenue reiterates the findings of Commissioner (Appeals). He submits that the Appellant enjoyed full exemption under Entry No. 242 of...
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