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TMI Blog2018 (7) TMI 1783X X X X Extracts X X X X X X X X Extracts X X X X ..... shmi Kumaran Sridharan JUDGMENT ( Judgment of this Court was made by S. Manikumar, J.) Instant Civil Miscellaneous Appeal is filed against the Final Order No.40085 of 2016, dated 18.01.2016, passed by CESTAT, South Zonal Bench, Chennai, on the following substantial questions of law:- 1. Whether Hon'ble CESTAT order is legal and proper in the light of the fact that the order is non-speaking on the grounds of appeal filed by the department? 2. Whether Hon'ble CESTAT is correct remanding the case for fresh adjudication on a new ground i.e.excisability dutiability of RFO, which was not a ground for appeal, without calling for views from the Department, as per Rule 10 of CESTAT (Procedure) Rules, 1982? 3. Whether Hon'ble CESTAT is correct in remanding the case for fresh adjudication to decide on the exciability and dutiability of RFO used in generation of Electricity, when the issue has reached a finality with the decision of Apex Court in the same party's case for the previous period vide decision reported in [2007(211)ELT 93(SC)]. 2. Short facts leading to the appeal are that, M/s.Chennai Petroleum Corporation, Chennai, are engaged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to supply electrical energy or a person who has obtained sanction, under Section 28 of the Electricity Act, to engage in the business of supplying electrical energy except those who produce the same, not for sale but for own consumption or supply to their own undertaking. In the instant case, TNEB had confirmed that the 1st respondent was neither a licensee under Part II of the Electricity Act nor had obtained sanction under Section 28 of the said Act. 5. Vide Show Cause Notice in O.C.No.360/2001, dated 31.07.2001, another demand was raised, on the same grounds, for a sum of ₹ 1,70,51,002/-, being the duty payable for the period from July 2000 to December 2000 on 10403.19 MTS of LSHS (RFO) cleared and used for generation of power sold to TNEB. 6. Vide Order-in-Original No.46/2001, dated 31.12.2001, both the demands totaling to ₹ 3,49,98,651/-, were confirmed by the Adjudicating Authority, with the following findings: (a) Regarding marketability of LSHS (RFO):- The term LSHS or RFO are interchangeable terms to refer to vacuum residue left behind after refining crude petroleum. The fact that it is vacuum residue does not make it non-marketable nor does its hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tio of total electricity generated using RFO Naphtha and then the quantity of RFO Naphtha used for generating electricity sold to TNEB and duty demanded accordingly. (ii) However, the Tribunal has overlooked this ground of appeal and passed remand orders to consider the excisability and dutiability of RFO, afresh, which was not a ground of contention at all. In other words, Hon'ble Tribunal has not addressed our ground of appeal in the final order. As the Tribunal has not considered the plea of the Department and remanded the order for considering the issue of excisability which has attained finality, therefore, the Tribunal's order is not legal and proper and deserves to be set aside. Moreover, the grounds and plea of the Department had not been considered by the Tribunal and hence, it is not a speaking order on this aspect of appeal, thus violating the principles of natural justice. (iii) CESTAT has observed that the adjudicating authority did not consider the crucial test of excisability by using the twin test prescribed by the Apex Court in the case of Board of Trustees Vs. CCE, AP [2007(216)ELT 513 (SC)]. In this regard, it is seen that the Adjudicating A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for both the parties. 12. Mr.R.Parthasarathy, learned counsel for the first respondent, fairly conceded that, the substantial questions of law, be answered in favour of revenue the further submitted that the matter be remanded to the Tribunal, for fresh consideration, with liberty to dealer/first respondent, to putforth all tenable contentions. 13. In Nandhi Spinning Mills (P) Limited Vs. The Commissioner of Central Excise, Salem Commissionerate, reported in 2018 [8] G.S.T.L.103, at paragraphs Nos.2 to 5, this Court held as follows:- 2. The tribunal is a final fact finding authority. Though the tribunal has considered the grounds of appeal, there is no discussion. Further, by relying on the decision of Punjab and Haryana High Court in the case of CCE Chandigarh Vs. Modern Alloys - 2010 (285) ELT 364 (P H), tribunal dismissed the appeal, which cannot be approved in the light of the decision of the Hon'ble Supreme Court in Tata Engineering Locomotive Co. Ltd., v. Collector of Central Excise, Pune reported in 2006 (203) ELT 360 (SC). 3. At this juncture, we deem it fit to consider few decisions, on this aspect. (i) In HVPNL v. Mahavir report ..... X X X X Extracts X X X X X X X X Extracts X X X X
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