At, Customs Excise Service Tax Appellate Tribunal New Delhi
By, THE HONORABLE JUSTICE: DR. SATISH CHANDRA
By, (PRESIDENT) AND THE HONORABLE JUSTICE: V. PADMANABHAN
For Petitioner: Vijayan Khongal, C.A And For Respondents: R.K. Mishra, AR
1. The present appeal is filed by the appellant against the order in appeal No. 249/RPR-I/2010 dated 15.09.2010 passed by the Commissioner of Central Excise (Appeals), Raipur.
2. Heard Sh. Vijayan Khongal, ld. C.A. for the appellant and Shri R. K. Mishra, ld. AR for the respondent.
3. Brief facts of the case are that during the period under consideration (April 2005 to October 2005), the appellant was engaged in the manufacture of sponge iron but side by side, the appellant was also engaged in the manufacture of fly ash bricks which were exempted from the excise duty if the contents of the fly ash is more than 25%. By Notification No. 06/2002-CE dated 01.03.2002 (Sl. No. 158 of the Notification No. 06/2002 ) the department has demanded excise duty on the fly ash bricks by stating that the appellant has not followed the procedure prescribed under condition of 36 of the said notification (supra). In the said condition, it is mentioned that the jurisdictional Commissioner will notify the manner in which information will be submitted by the appellant. It is the submission of the ld. Counsel that for the purpose, no prescribed form was made available by the jurisdictional Commissioner. First time, the required form was published being Notice No. 01/2009 dated 27.01.2009 i.e. much after the disputed period. Hence, there was no occasion to supply the information during the period under dispute.
4. From the record, it appears that the appellant was using more than 40% of fly ash in manufacture of bricks and entire record was maintained in ER-4 which was also produced before the lower authorities.
5. After hearing both sides and on perusal of record, it appears that for fulfilling the Condition No. 36 (supra), the jurisdictional Commissioner has not made any form published in form or manner where information was required. When it is so, then we are of the view that the information supplied by the appellant in ER-4 was sufficient pertaining to fly ash brick which
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is exempted from the duty as stated above. When it is so, then we find no reason to sustain the impugned order and the same is hereby set-aside. 6. In the result, appeal filed by the appellant is allowed.