2017 (10) TMI 656 - HC - Central Excise

CENVAT credit - base oil - it was alleged that the appellant had availed of cenvat credit on duty of full quantity of base oil as shown in the invoice/bill but the scrutiny of documents shows that in fact the appellant has received base oil of a shorter quantity - the contention of the learned counsel for the appellant before this Court was that the submissions have not been correctly recorded by the Appellate Tribunal. If that be so, the appellant had a remedy available. Held that - The law is very well settled. If the case of the appellant was that either the submissions have not been correctly recorded or that some of the submissions actually made before the Appellate Tribunal were not recorded and not dealt with, the remedy available for the appellant was before the Appellate Tribunal. Only on the basis of the letter addressed by the Cen Ex Services, the Consultants appointed by the appellant, we cannot accept the contention that what is recorded in paragraph 2 of the Judgment is not correct. Before the Appellate Tribunal, the appellant never relied upon the letter addressed by the Cen Ex Services - Also, the said letter specifically refers to the mineral oil. If the appellant wanted to rely upon the said letter, it was for the appellant to produce the said letter before the Appellate Tribunal and satisfy the Tribunal that the lubricating base oil is also a mineral oil. The question of fact whether the lubricating base oil is mineral oil or not cannot be adjudicated upon in this appeal for the first time. Appeal dismissed - decided against appellant.

Summary

Issues:
1. Dispute over availing cenvat credit on base oil.
2. Allegation of short receipt of base oil leading to a demand for duty.
3. Imposition of interest and penalty under section 11(c) of Central Excise Act, 1944.
4. Commissioner dropping the demand for extended period but confirming it for a specific period.
5. Appellate Tribunal setting aside the penalty but allowing computation of duty with a 0.1% permissible limit.
6. Appellant's contentions on substantial questions of law and reliance on various orders and notifications.
7. Discrepancies in recording submissions by the Appellate Tribunal.
8. Tribunal's reliance on departmental instructions and circulars.
9. Appellant's reliance on past orders and judgments.
10. Appellate Court's decision on the absence of substantial questions of law.

Analysis:
The case involves a dispute regarding availing cenvat credit on base oil and a demand for duty due to alleged short receipt of base oil, invoking the extended period of limitation. The Commissioner dropped the demand for the extended period but confirmed it for a specific period, imposing interest and penalty under section 11(c) of the Central Excise Act, 1944. The Appellate Tribunal set aside the penalty but allowed the appellant to compute duty with a 0.1% permissible limit on losses. The appellant raised substantial questions of law based on past orders and notifications, arguing that lubricating base oil is a mineral oil and should be treated as such. However, the Tribunal relied on departmental instructions and circulars, dismissing the appellant's contentions on substantial questions of law. The appellant also disputed the recording of submissions by the Appellate Tribunal but failed to provide sufficient evidence to support their claim. The Court emphasized that the question of whether lubricating base oil is a mineral oil cannot be decided in the current appeal. Additionally, the Court noted that past orders relied upon by the appellant did not establish a precedent applicable to the current case. Ultimately, the Court found no substantial question of law in the appeal and dismissed it accordingly.