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TMI Blog2023 (12) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... mand of Rs.25,37,432/- along with interest. No penalty was imposed under Rule 25 or 27 of the Central Excise Rules, 2002. The duty along with interest confirmed has been adjusted against the pre deposit of Rs.35,00,000/- made by the Appellant. Aggrieved against the impugned order, the Appellant has filed this appeal. 2. Briefly stated facts of the case are that during the period in dispute, the Appellant produced acetylene gas which was used in various departments of the Appellant in relation to the manufacture of final products and also for the repair and maintenance of various plant and machineries. Such acetylene gas being used in the factory for these activities was being cleared without payment of duty by availing the benefit of exemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lkata vide Final Order No. A-145/KOL/2011 dated 03.05.2011 remanded the matter back to the Adjudicating Authority to decide the matter by taking into consideration the Circulars of CBIC dated 31.05.1990, 06.12.1993, and 04.05.1994. Pursuant to the order of the CESTAT, the Commissioner of Central Excise and Service Tax, Ranchi passed the impugned Order, dropping the demand with respect to the exemption claimed by the Appellant under Notification No. 67/95-CE. However, the demand of Rs. 2,29,298/-on the acetylene gas used in the traffic department for repair and maintenance of railway track, wagons etc., and Rs. 23,08,134/- for the acetylene gas used in 26 shops/departments wherein the Appellant had claimed exemption under Notification No. 65 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification No. 65/95-CE. Therefore, the impugned Order is liable to be set aside on this ground alone. In this regard, the Appellant placed their reliance on the decision of the Hon'ble Apex Court in the case of Commissioner of Central Excise, Nagpur v. Ballarpur Industries Ltd., 2007 (215) E.L.T. 489 (S.C.) 6. The Ld. Commissioner has denied the benefit of exemption under Notification No. 65/95-CE dated 16.03.1995 for the acetylene gas used in the traffic department for repair and maintenance of rail tracks, railway wagon and loco on the ground that benefit of exemption notification no. 65/95-CE dated 16.03.1995 is not eligible as the use of acetylene gas for such activity cannot be said to be used for repair and maintenance of machinery i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucts in the absence of rail traffic will cause stoppage of production and can also result in damage of the plant and machinery. The Appellant submits that they claimed the exemption of captively consumed acetylene gas under the Notification 65/95 as well as under 67/95. The adjudicating authority has denied the exemption for the acetylene gas consumed within the factory for repair and maintenance of railway track, railway wagon, loco and in certain shops and departments for repair and maintenance of machineries under the Notification 65/95. However, they are eligible for the exemption under the Notification 67/95, since the said railway track, rail wagons, and locomotives are integral to the manufacture of the goods of the Appellant and are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the machinery should be used for the manufacture of final goods. Since the acetylene gas has been used for repair and maintenance of machineries that are not used for the manufacture of final goods, the exemption will not be applicable. 10. We observe that the Appellant claimed the exemption of captively consumed acetylene gas under the Notification 65/95 as well as under 67/95. The adjudicating authority has denied the exemption for the acetylene gas consumed within the factory for repair and maintenance of railway track, railway wagon, loco and in certain shops and departments for repair and maintenance of machineries under the Notification 65/95. However, we observe that they are eligible for the exemption under the notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held as under: "17. .... It is clear that the railway tracks are installed not only within the plant, but the main objective and purpose for which the capital expenditure on laying these railway tracks is incurred by the appellant is for transporting hot metal in ladle placed on ladle car from blast furnace to pig casting machine through ladle car where hot metal is poured into pig casting machine for manufacture of pig iron. It is clear from the above that the use of railway tracks inside the plant not only form the process of manufacturing, but it is inseparable and integral part of the said process inasmuch as without the aforesaid activity for which railway tracks are used, there cannot be manufacturing of pig iron." 11. By followin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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