2010 (12) TMI 593 - HC - Central Excise

Cenvat credit - Limitation - Whether the CESTAT was right in rejecting the appeal on merits by denying the credit on LDO used as fuel for generation of steam part of which was cleared to the sister concern for use in the manufacture of dutiable final products - Hence, identical issue had been considered by the Tribunal in the case of 2007 -TMI - 1589 - SUPREME COURT OF INDIA ,had denied the benefit - However, the Tribunal had held that the demand raised after the normal period of 6 months was barred by limitation - Tribunal has decided the appeal of the assessee only on the question of invocation of the larger period of limitation - Once the appellant has not contested the matter on merits before the Tribunal, needless to state that it is not open for the appellant to raise the same before this Court. - Decided against the assessee.

Summary

Issues:
Challenge to order under Section 35G of the Central Excise Act, 1944 regarding denial of credit on LDO used as fuel and treatment of steam used in sister concern as 'steam used within the factory of production.'

Analysis:
1. The appellant-assessee challenged the order of the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) under Section 35G of the Central Excise Act, 1944. The two main questions proposed were related to the denial of credit on LDO used as fuel for steam generation and the treatment of steam used in a sister concern as 'steam used within the factory of production.'

2. The Tribunal considered the appellant's concession that a similar issue had been addressed previously in the case of M/s. Mafatlal Industries and had been denied based on relevant judgments. The Tribunal also noted the limitation period for the demand raised, which was deemed barred by limitation. The appellant's advocate requested similar treatment and argued for limitation to be considered in part of the order.

3. The Tribunal decided to address the appeal solely on the issue of the larger period of limitation due to the appellant's advocate's request. Since the appellant did not contest the matter on its merits before the Tribunal, it was deemed impermissible for the appellant to raise the same before the Court. The Tribunal did not delve into the merits of the case due to the concession made by the appellant's advocate, rendering the proposed questions irrelevant to the impugned order.

4. Ultimately, as there was no question of law presented, the Court dismissed the appeal. The decision was made based on the absence of any legal issues arising from the Tribunal's order, which was not contested on its merits during the proceedings. The dismissal was a result of the appellant's failure to challenge the matter substantively before the Tribunal, limiting the scope for further legal recourse on the same grounds.