2022 (12) TMI 350 - AT - Central Excise

Tribunal denies SSI exemption, grants cum-duty benefit to appellant for power driven pumps.

Jay Dan Gigev Welding Works Versus Commissioner of Central Excise & ST, Bhavnagar

The Tribunal held that the appellant was not entitled to the SSI exemption under Notification No. 8/2003-CE for power driven pumps without BIS ... SSI exemption Notification No. 8/2003-CE dated 01.03.2003 as amended by Notification No. 8/2006-CE dated 01.03.2006 - power driven pumps which does not bear BIS specification and the appellant did not obtain ISI certificate - HELD THAT:- Admittedly the appellant’s product is not in conformation to BIS standard as specified in the notification. They have not obtained any ISI certificate. Therefore, exemption of SSI notification 08/2003-CE as amended, is not admissible to the appellant. The issue decided in the case of M/S BORANA PUMPS VERSUS COMMISSIONER OF CENTRAL GOODS AND SERVICE TAX, CUSTOMS & CENTRAL EXCISE, JODHPUR-I [2021 (6) TMI 1034 - CESTAT NEW DELHI] where it was held that it is not possible to agree with the contention of the learned Chartered Accountant for the appellant that the appellant was eligible for the benefit of exemption notification even though it had no BIS certificate, because the certificate was issued much later in 2014 which means that their products met the standards of BIS all through - since the appellant does not have ISI certification to conform the BIS Standard, the appellant is not eligible for SSI exemption Notification No. 8/2003-CE. Cum-duty price claimed by the appellant - HELD THAT:- As of now the issue has been settled that in any case where the duty is demanded, the principle of cum-duty price shall be applicable. The appellant have taken support from the decision of Hon’ble Gujarat High Court in the case of COMMISSIONER OF C. EX. & CUS., DAMAN VERSUS POONAM PLASTICS INDUSTRIES [2010 (12) TMI 993 - GUJARAT HIGH COURT]. Therefore, we are of the view that appellant is entitled for cum-duty price benefit. Accordingly, the Adjudicating Authority shall recalculate the duty by extending the benefit of cum-duty price. The demand of duty subject to recalculation by extending cum-duty price benefit is sustainable. Since duty shall be re-quantified, the appellant shall be entitled to the option of reduced penalty of 25% subject to payment of re-quantified duty, interest, if any and 25% penalty within one month from the date of communication of re-quantified duty to be made by the Adjudicating Authority to the appellant - Appeal allowed by way of remand. Issues:1. Entitlement for SSI exemption under Notification No. 8/2003-CE for power driven pumps without BIS specification and ISI certificate.2. Appellant's eligibility for cum-duty price benefit.Analysis:Issue 1: The main issue in this case was whether the appellant was entitled to the SSI exemption under Notification No. 8/2003-CE for power driven pumps without BIS specification and ISI certificate. The Tribunal noted that the appellant's product did not conform to BIS standards and lacked an ISI certificate, which are mandatory requirements for the exemption. The Tribunal cited previous judgments like Borana Pumps and Super Pumpms Pvt. Limited to support their decision. Additionally, they referred to the case of Coronation Industries where a similar issue was decided against the appellant due to non-conformance with BIS standards. Consequently, the Tribunal held that the appellant was not eligible for the SSI exemption under Notification No. 8/2003-CE.Issue 2: Regarding the cum-duty price benefit claimed by the appellant, the Tribunal acknowledged that the principle of cum-duty price applies when duty is demanded. They cited the decision of the Hon'ble Gujarat High Court in the case of Poonam Plastic Industries to support this view. Therefore, the Tribunal concluded that the appellant was entitled to the cum-duty price benefit. They directed the Adjudicating Authority to recalculate the duty considering this benefit. As a result, the demand of duty, subject to recalculation with the cum-duty price benefit, was deemed sustainable. The appellant was given the option of reduced penalty of 25% upon payment of the re-quantified duty, interest, if applicable, and 25% penalty within one month from the communication of the re-quantified duty by the Adjudicating Authority. Consequently, the appeal was disposed of accordingly, with the judgment pronounced on 06.12.2022.