2013 (10) TMI 947 - HC - Central Excise

Reversal of cenvat credit - Proportionate input and input credit input and input services used in generation of power - CESTAT had remanded back the matter for reexamination of the matter - Held that - There was no substantial questions of law as framed for consideration of this Court arises for consideration of the Court - The order of the Tribunal does not prejudices the interest of the revenue in any manner - Even if separate accounts were not maintained the Adjudicating Authority was required to examine the aspects detailed and to record findings - The CESTAT has left it open to authority to hear the appellant and to decide the issue afresh Decided against Revenue.

Summary

Issues:
- Condonation of delay in filing the appeal
- Application of 5% formula to duty demand
- Reversal of Cenvat credit
- Remand to Adjudicating Authority for detailed examination
- Prejudice to revenue interest
- Dismissal of Central Excise Appeal

Condonation of Delay:
The appeal under Section 35-G of the Central Excise Act, 1944 was reported to be beyond the stipulated time by 23 days. The Central Excise department filed an application to condone the delay, which was not objected to by the respondent-company's counsel. The delay was thus condoned, and the appeal was allowed to proceed with a regular number.

Application of 5% Formula to Duty Demand:
The Customs, Excise & Service Tax Appellate Tribunal found a duty demand of Rs. 1,38,34,565/- applying a 5% formula to the sale value. The Tribunal noted that the dispute primarily revolved around the reversal of Cenvat credit attributable to the generation of power sold outside. The Tribunal remanded the matter back to the Adjudicating Authority for a detailed examination of various aspects related to input, input service, and Cenvat credit involved in the generation of power sold outside.

Reversal of Cenvat Credit:
The Tribunal directed the Adjudicating Authority to calculate and examine the total value of input, input service, and Cenvat credit involved in the generation of power sold outside. The Authority was instructed to consider whether the demand still arose after thorough calculations and to pass an appropriate order. The Tribunal emphasized the need for a fair hearing for the appellant and a reasoned order by the Authority.

Remand to Adjudicating Authority for Detailed Examination:
The Tribunal, upon finding that the dispute required further examination, remanded the matter back to the Adjudicating Authority. The Authority was tasked with considering all contentions raised by the appellant, both on facts and law, based on the available record. The Authority was directed to pass a reasoned and speaking order after a thorough evaluation of the details provided by the appellant.

Prejudice to Revenue Interest:
The High Court observed that the Tribunal's order did not prejudice the interest of the revenue. Even if separate accounts were not maintained, the Adjudicating Authority was required to examine the detailed aspects outlined by the Tribunal and make findings. The Court noted that the Tribunal left it open for the Authority to hear the appellant and decide the issue afresh, ensuring a fair process.

Dismissal of Central Excise Appeal:
After considering the arguments and findings, the High Court concluded that the Central Excise Appeal did not raise any substantial questions of law for its consideration and decision. Consequently, the Court dismissed the appeal, affirming the Tribunal's decision and directions for a detailed examination by the Adjudicating Authority.