At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
By, THE HONORABLE JUSTICE: RAMESH NAIR
By, MEMBER AND THE HONORABLE JUSTICE: RAJU
For Petitioner: M.R. Melvin, Supdt. (AR) And For Respondents: Ramnath Prabhu, Advocate.
1. This appeal has been filed by the Revenue against the order-in-appeal passed by the Commissioner (Appeals). The issue involved in the present case is that whether the "Blast Furnace Gas" generated as bi-product during the manufacturing process is leviable for payment of an amount in terms of Rule 57AD of erstwhile Central Excis
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e Rules, 1944/Rule 6 (3)(b) of Cenvat Credit Rules, 2001/2002/2004. Shri. M.R. Melvin, Ld. Superintendent (AR) appearing on behalf of the Revenue reiterates the ground of appeal.
2. Shri. Ramnath Prabhu, Ld. Counsel appearing on behalf of the respondents at the outset submit that this appeal was filed only on the ground that in identical issue in the appellant's own case against order-in-appeal No. AT/207/RGD/2006 dated 31/03/2006, the revenue has filed appeal before this Tribunal. However, the said appeal has already been disposed off vide order No. A/86051-86052/17/EB dated 23/02/2017 -whereby the Revenue's appeal was dismissed relying on the Hon'ble Supreme Court judgement in the case of Hindustan Zinc Ltd. -. Therefore, the issue is no longer res integra.
3. We have carefully considered the submission made by both sides. We find that the issue is no longer res integra as the basis of filing the appeal is settled vide this Tribunal order dated 23/02/2017 whereby dismissed the appeal of the Revenue holding that demand of 8% under Rule 6 of Cenvat Credit Rules, 2002/2004 is not applicable, in the light of the Hon'ble Apex Court judgement in the case of Hindustan Zinc Ltd. (supra). Relevant part of the order dated 23/02/2017 is reproduced below:
"1. The respondent M/s Ispat Metallics (India) Ltd. are engaged in manufacture of goods falling under Chapter 72 of the First Schedule to Central Excise Tariff Act, 1985. During the manufacturing process, Blast Furnace Gas (BFG) is generated. Part of the Blast Furnace Gas is supplied to M/s Indorama Cement Ltd. without payment of duty by claiming exemption under Notification No. 76/86 dated 10.2.1986 as amended. At the material time, the appellants were also availing CENVAT Credit and, therefore, since the said gas was cleared without payment of duty, an amount equal to 8% of the total price of the BFG recovered from M/s Indorama Cement Ltd. as demand under Rule 57AD of Central Excise Rules, 1944 and Rule 6 of Cenvat Credit Rules, 2002. The demand was set aside by the Commissioner (Appeals). Aggrieved by the said order, the Revenue is in appeal before this Tribunal. M/s Ispat Metallics (India) Ltd. have also filed Cross-objection.
2. Learned AR for the Revenue relied on the grounds of appeal in the appeal memorandum.
3. Learned Counsel for the respondent relied on the decision of the Tribunal in their own case wherein the Revenue's appeal in the identical circumstances was dismissed vide order reported in. The Tribunal in the said case has relied on the decision of the Hon'ble Apex Court in the case of Hindustan Zinc Ltd.
4. Respectfully following the earlier decision of the Tribunal and the ratio of the decision of Hon'ble Apex Court in the case of Hindustan Zinc Ltd. (supra), the appeal of the Revenue is dismissed. Cross-objection is also disposed of."
In view of the above order, the issue stands settled. Accordingly, the impugned order is upheld and the appeal is dismissed