M\/s. ABI Turnamatics Versus Commissioner of GST & Central Excise
Central Excise
2019 (2) TMI 1296 – CESTAT CHENNAI – 2019 (366) E.L.T. 1048 (Tri. – Chennai)
CESTAT CHENNAI – AT
Dated:- 19-2-2019
Appeal No. E\/265\/2010 – Final Order No. 40319 \/ 2019
Central Excise
Hon'ble Shri Madhu Mohan Damodhar, Member (Technical)
\nShri S. Murugappan, Advocate for the Appellant
\nMs. T. Usha Devi, DC (AR) for the Respondent
\nORDER
\nPer Bench
\nThe appellant is a 100% EOU with green card holder who are engaged in manufacture and export of turbo charger components, machined castings, tools \/ jigs \/ fixtures. Department took the view that bearing housing and turbine wheel assembly and components are not similar goods. In terms of Sl. No. 2 of Notification No. 23\/2003-CE dated 31.3.2003, benefit is available only if the product is made out of indigenous raw materials. Secondly, the Assistant \/ Deputy Commissioner of Central Excise's prior approval \/ satisfaction is needed for DTA cleara<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n as per Board's Circular No. 12\/2005-Cus. dated 4.3.2005. 'Similar goods' definition cannot be taken from Customs Valuation Rules for interpreting the provisions of Foreign Trade Policy (FTP). He relied on the following case laws:- = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n r the clarification given by the Board, the turbine wheel and bearing housing cannot be called as similar goods and thus the appellant is not eligible to avail concessional duty in respect of clearances of turbine wheel to DTA. The ld. AR also submitted that the legislation intent was to allow similar goods to be sold in DTA that were exported. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n tional Deputy\/Assistant Commissioner of Customs\/Central Excise and instead unit shall be required to send prior intimation. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n oard's clarification is under:- = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ents of a turbo charger but instead has only indicated export product as 12,50,000 nos. of turbo charger component which was even subsequently enhanced to 32,00,000 nos. of turbo charger components, the appellant cannot then be said to have caused a breach of the conditions. Both bearing housing and turbine wheel are surely component parts of turbo charger, a fact which has been admitted by the adjudicating authority in para 12 of the impugned order. If on the other hand, the permission granted by the Development Commissioner to the EOU was only for bearing housing, in that event, the clearance of turbine wheel which is a part distinct from bearing housing would have come under the scanner. But when the permission is generic and only states “turbo charger components”, the condition of the impugned notification gets satisfied so long as the parts that the exported and the parts cleared into DTA are both the components of turbine charger. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" M\/s. ABI Turnamatics Versus Commissioner of GST & Central ExciseCentral Excise2019 (2) TMI 1296 – CESTAT CHENNAI – 2019 (366) E.L.T. 1048 (Tri. – Chennai)CESTAT CHENNAI – ATDated:- 19-2-2019Appeal No. E\/265\/2010 – Final Order No. 40319 \/ 2019Central ExciseHon'ble Shri Madhu Mohan Damodhar, Member (Technical) Shri S. Murugappan, Advocate for the Appellant Ms. T. Usha … Continue reading “M\/s. ABI Turnamatics Versus Commissioner of GST & Central Excise”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-16950","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/16950","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16950"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/16950\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16950"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16950"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16950"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n a. Meghmani Industries Ltd. Vs. Commissioner of Central Excise, Ahmedabad – 2010 (261) ELT 411 (Tri. Ahmd.)
\n b. Commissioner of Central Excise, Pune Vs. TELCO – 2000 (126) ELT 1102 (Tribunal).
\n2.2 The green card issued to the unit does not make any distinction within the various components of turbo charger. Total quantity is to be exported is given as 32,00,000 numbers. The expression 'similar' has to be interpreted in the above context.
\n2.3 Even assuming but not admitting there is doubt regarding similar nature of the goods, DGFT \/ Development Commissioner is the final authority for interpretation of the policy provisions. Hence, matter can be remanded for consideration of the scope of the provision by the appropriate authority. He relied upon the judg<\/p>\n
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\n4. Heard both sides.
\n5.1 We find that the show cause notice was issued on the following grounds:-
\na. The benefit of concessional duty under Notification 23\/2003-CE was available if the goods cleared are made by using indigenous materials. Hence when both indigenous and imported raw materials were used the benefit cannot be claimed.
\nb. Appellants are exporting bearing housing whereas they had cleared turbine wheel assembly in the DTA.
\nc. Condition No. 2 entails that exemption shall not be availed unless there is satisfaction that the said goods have been cleared into DTA or similar to the goods which are exported or expected to be exported d<\/p>\n
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\n (ii) In this respect your attention is invited to Circular No. 88\/98-Cus Dated 2.12.98 whereby it has been decided that sale into DTA can be made by the manufacture himself subject to his recording of each transaction in the records prescribed by the Board\/Commissioners or their private records approved by the commissioners. Further, Rule 17 of the Central Excise Rules, 2002 provides that EOU can clear the goods on payment of duty. Therefore EOUs are not required to take permission from the jurisdictional customs\/central excise authority for DTA sale of goods. The units may sell the goods on payment of duty as per the conditions and entitlements as specified in Foreign Trade Policy.
\n (iii) As eligible EOUs are not required to take permission for DTA sale of finished goods upto their entitlement and subject to fulfilment of conditions as mentioned in para 6.8(a)<\/p>\n
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\n “The term 'similar goods” means “goods which is although not alike in all respects, have like characteristics and like component materials which enable them to perform the same functions and to be commercially interchangeable with the goods which have been exported or expected to be exported having regard to the quality, reputation and the existence of trade mark and produced in the same unit by the same person who produced the export goods”
\n5.5 In the first place, we find that the Tribunal in the case of Meghmani Industries Ltd. (supra) has addressed the very controversy in respect of the definition of 'similar goods' for exemption under Notification 23\/2003-CE. The Tribunal in the decision after referring to the judgment of the Hon'ble Supreme Court in Wood Craft Products Ltd. – 1995 (77) ELT 23 (SC) and of the Tribunal in TELCO – 2000 (126) ELT 1102 (Tribunal) noted that the definitional available in the Customs Act cannot be used in respect of<\/p>\n
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\n5.6 In the circumstances, we are in favour of th<\/p>\n
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