9911796707
TMI Blog2022 (6) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... hose two abovementioned issues on merits, without reference to the period of limitation. It is also noticed that as per the provision of the Central Excise Act, Tribunal has no power to review the order. However, it is well settled law that all subordinate courts/tribunals/authorities were bound by the decision of the Apex Court until it was reviewed or corrected by the same court. The decisions rendered by the Apex Court being the highest judicial fora are binding on all subordinate courts. However, this apex court order can also be considered as remand for deciding the issue on merit. Considering the said facts, we now decide the issues on merits related to applicability of Notification No. 29/89-CE dtd. 01.03.1989 and legality of penalty of Rs. 36,00,000/- under Rule 173-Q of the Central Excise Rules, 1994 addressed by the Hon ble apex court. Whether the benefit of Notification 29/89-C.E. dtd. 01.03.1989 admissible to Applicant or not? - HELD THAT:- From the plain reading of above notification, it is clear that in above notification benefit was granted to the Kerosene falling under heading No. 27.10 of the Schedule of the Central Excise Tariff Act, 1985 (5 of 1986) intended for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal before the Hon'ble Supreme Court against the Tribunal Final Order No. A/10818-10819/2015 dated 19.06.2015. The Apex Court in this matter passed the following order: "1. Shri S.K. Bagaria, Learned Counsel appearing for the appellant Indian Oil Corporation Ltd. would submit that the tribunal, while disposing of the appeals(s) before it, has not decided two more issues viz., (i) Applicability of Notification No. 29/89-CE dtd. 01.03.1989 and duty computation on that basis and (iii) Legality of penalty of Rs. 36,00,000/- (Rupees Thirty Six Crores only) under Rule 173Q of the Central Excise Rules,1944. 2. If that is so, we permit the learned senior counsel to approach the Tribunal by filing a Review Petition before it. 3. If such a Review Petition is filed within a month's time from today, we request the tribunal to decide those two abovementioned issue on merits, without reference to the period of limitation. 4. The Civil Appeal are disposed of accordingly." 2. In terms of the above order of Hon'ble Supreme Court, review petition by way of Misc. Application was filed on 19.10.2015 by the applicant/appellant. 3. Learned Shri Chandan Kumar, General Manager (Finance) appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication 75/84-CE has been held against the Appellant in view the Supreme Court judgment in the case of IOCL Vs. CCE 2010 (259) ELT 172 (SC). In that case concessional rate of duty as available under exemption notification no 5/98 was sought for the kerosene supplied to industrial customers. The ratio of the Judgment of Supreme Court is that the benefit of exemption Notification 5/98 would be available only to that variety of kerosene that (i) has a point of 18 or more and is (ii) ordinarily used as an illuminant in oil burning lamps. However, in case of Notification No. 29/89, it is specifically provided that exemption would be available only if kerosene is supplied for the purpose of manufacture of Liner Alkyl Benzene or Heavy Alkylate which is obviously for industrial purpose. Therefore, the ratio of the Supreme court judgment in the context of notification 5/98 cannot be applied in the context of claim for exemption notification number 29/89. 8. He also submits that since the products (LABFS and LARO) though classifiable as 'Kerosene' under CETH 2710 were not sold through PDS but supplied for the purpose of manufacture of Liner Alkyl Benzene or Heavy Alkylate same would be eli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation No. 29/89 dtd. 01.03.1989 to LABFS cleared by the Appellant for the manufacture of LAB and duty exemption on the return stream of mineral oil. In the appeal memorandum, filed by the appellant, there is no plea claiming the benefit of the aforesaid Notification. Beside, in the written submission filed on behalf of IOCL at the time of the hearing held by the Hon'ble tribunal, there is no whisper about this issue. Accordingly, in the submission on behalf of the department as also in the final order passed by the Hon'ble tribunal there is no mention about the said issue. The Hon'ble Tribunal cannot, therefor, be faulted for not deciding the said issue, when the issue was not raised before them. To this extent, the statement made before the Apex court by the Senior advocate was misleading and erroneous. 14. He further submits that the issue being totally new cannot be raised or consider after the passing of the final order since it would amount to a review of the said final order. 15. As regard the second issue relates to the imposition of penalty under Rule 173-Q of Central Excise Rule 1944 he submits that, there is no specific plea in the appeal memorandum seeking annulment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g given by the Hon'ble Tribunal in respect of applicability of Notification No. 75/84 to clearances of LABFS, would equally apply to the exemption under Notification 29/89. Thus, the said product would not be eligible to the benefit of the exemption under Notification No. 29/89. 20. As regard the penalty issue, he reiterated the finding of order -in-original and submits that IOCL had not made a strong defence against imposition of penalty under Rule 173Q of Central Excise Rule, 1944 and that they cannot claim the benefit of bonafide belief. There is no merit in the present 'review appeal field by the appellant and the same may be rejected. 21. Heard both sides and perused the records. We find that in the present review application is filed by the applicant on the basis of Hon'ble Supreme Court order dtd. 21.09.2015 and the Hon'ble apex court vide order in para 3 also held that "if such review petition is filed within a month's time from today, we request the Tribunal to decide those two abovementioned issues on merits, without reference to the period of limitation." We also noticed that as per the provision of the Central Excise Act, Tribunal has no power to review the order. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liner alkyl benzene or heavy alkylate. Clearly the above notification ibid is a conditional exemption notification, benefit of which is admissible subject to fulfillment of the conditions. 23. The claim of the Applicant that exemption Notification No. 29/89-C.E. dtd. 01.03.1989 applies to any mineral oil (Kerosene) falling under heading 2710 of the Schedule to the Central Excise Tariff Act 1985 is not correct. The said exemption Notification applies only on "Kerosene" and not for any other mineral oil falling under heading 2710. 24. Only product "Kerosene" falling under chapter heading 27.10 and consumed in the manufacture of linear alkyl benzene or heavy alkylate will be eligible for exemption under above Notification. Since the said factual position, related to conditions of notification cannot be ascertain at this stage specifically when the said issue was raised before the Tribunal first time. In the above position of the case, we are of the view that now adjudicating authority must decide and verify the matter first whether products of applicant can be considered as "Kerosene" for the purpose of above exemption notification and thereafter, verify the use of products for man ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
