9911796707
TMI Blog2008 (3) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 2. 265/07 National Fertilisers, Goniana Road, Bathinda 11/CE/ADC/LD ./06 dated 25-8-06 22,28,335 Since issue involved in both the cases is same, these are being taken up for decision through a common order. 2. Brief facts of the case are that the respondents are engaged in the manufacture Fertilisers (urea) which is exempt from payment of Central Excise duty. For the manufacture of fertilizer (urea) they procure furnace oil (F.O.), Low Sulpher Heavy Stock (LSHS) and Heavy Petroleum stock (HPS) from Indian Oil Corporation under chapter X procedure of erstwhile Central Excise Rules, 1944 and Central Excise (Removal of goods at concessional rate of duty for manufacture of excisable goods) Rules, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and that the respondent has not received any payment from the Railways or the supplier. It is evident from the claim filed by the respondent with the Railways that they had short received the inputs namely Furnace Oil, Low Sulphur Heavy Stock and Heavy Petroleum Stock dispatched to them by M/s. IOC under Chapter X Procedure and Central Excise (Removal of goods at concessional rate of duty for manufacture of excisable goods) Rules, 2001. Therefore, these short received quantities of inputs have not been used for the intended purpose i.e. manufacture of urea. The adjudicating authority has not brought on record any evidence, in the form of a certificate from the Railways or in any other form, to conclude that the party s claim has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of short receipt of goods. The buyer is required to pay duty on the value remitted by the supplier to the buyer because this is the value of quantity of the furnace oil which has not been used for the intended purpose i.e. manufacture or urea. 4. The Respondent filed the reply of the cross-objection on the following grounds :- i. On the basis of material placed before the Additional Commissioner in reply to show cause notice, the adjudicating authority accepted the factual position and explanation of the respondent supported by CA s certificate and dropped the demand, thus rendering baseless the demand founded on objection of audit on account of missing tanker wagons used for transporting LSHS of the value shown in bal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... today in appeal, the department has not tabled your honour any material or evidence on record to indicate much less establish that NFL received short quantity of LSHS/Furnace oil from IOC. iv. The appeal in respect of temperature variance allowance pertains to alleged short receipt of furnace oil by the respondent on the sole ground that settler (sic) [seller] IOC has passed cash allowance to buyer respondent on account of temperature variation allowance and that no formula/parameter have been discussed in adjudication order in regard to temperature variations allowance allowed to the respondent by IOC. The aforesaid premises is baseless. v. As per para 87 of departmental instructions the volume reduction factor was to be obtai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occasions but neither the appellants nor the respondents appeared. Therefore, the appeals are being taken up for decision on the basis of material available on records including the submissions made by the respondents. 6. I have examined the case records. As per facts of the case the respondents obtained various Oils without payment of duty under Chapter X procedure from IOC for manufacture of fertilisers under Notification No. 3/2001-CE dated 1-3-2001, as amended. The allegation of the department is that the respondents had not received the entire quantity of the Oils from IOC. This is based upon the balance sheets of the respondents in which they have shown claims towards short receipt of Oils having been filed with the IOC. This is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly supplied by the railways to them after relocating the tanks/wagons. The statement is invoice-wise and it is found from this statement that there has been no short receipt of the oils. Therefore, the allegation of the department that there was short receipt of Oils procured without payment of duty from IOC under chapter X procedure is without any evidence and is not proved. The findings of the adjudicating authority in holding so are correct and therefore, upheld. 8. The other ground of appeal of the department is that the adjudicationg authority has not discussed the formula regarding the Temperature Variation Allowance (TVA). I find that Board vide Circular No. 778/11/2004-CX dated 11-3-2004 has directed the field formations to adop ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
