9911796707
TMI Blog2024 (8) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... ifications, when the manufactured goods are used captively, no Excise Duty is required to be paid. The Department took the view that the electricity generated by the usage of LSHS, is not only used in relation to manufacture of final product but also such electricity is being used for the day to day requirement of running their township, refinery hospital, etc. Since the electricity is not being used in such cases towards any manufacturing purpose, for usage of such LSHS, Excise Duty was required to be paid. The Excise Duty was demanded under two Show Cause Notices. The first Show Cause Notice was issued on 13/05/2008 for the period April 2007 to June 2007. The second Show Cause Notice was issued on 16/05/2008 for the period January 2007 to March 2007. After due process, the Adjudicating Authority confirmed the demands. On appeal, the Commissioner (Appeals) upheld the Order-in-Original. Being aggrieved, the appellant is before the Tribunal. 2. The Learned Counsel appearing on behalf of the appellant submits that the product manufactured by them does not qualify to be termed as LSHS. He produces a copy of Test Report wherein the Requirements as per BIS specifications and the Result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Mangalore Refinery case is squarely applicable to the facts of the present case. In view of these submissions, he prays that the appeal may be allowed on merits. 5. He further submits that it is on record that appellant has filed their declaration on 20/03/1997 and 30/09/2001 claiming the exemption under Notification No. 67/95 and 11/97. They have been filing the details of LSHS consumed in the monthly Returns and all the data is properly recorded in their Books of Accounts. Therefore, the Department cannot allege any suppression on their part. Hence, he submits that the Show Cause Notice issued on 6 May 2008, for the period January 2007 to March 2007 should be held as non-sustainable and the confirmed demand towards the extended period should be set aside on account of time bar also. 6. The Learned AR reiterates the findings of the lower authorities and submits that since the parameters shown in the Mangalore Refinery case are different from the parameters in the present case, the lower authorities were correct in confirming the demand. He relies on the case law of Indian Oil Corporation Ltd. Vs. Collector of C. Ex., Baroda-2006 (202) E.L.T. 37 (S.C.). He submits that in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther than the manufacture of dutiable petroleum products. Proceedings were initiated against the appellants and the impugned order of the Commissioner (Appeals) confirms the order of the original authority which demands duty on that portion of LSHS utilized in the production of electricity diverted for residential purposes. In the impugned order passed by the Commissioner of Central Excise, Mangalore, there is an additional point raised by the appellant. The appellant has questioned the excisability of the LSHS utilized in the refinery on the ground that it does not conform to the specifications for marketing the same. The Commissioner has dealt with this issue in his order and has rejected the contention of the appellants. Hence, they have come before this Tribunal for relief. 5. The learned SDR pointed out that the appellants themselves described the impugned product as LSHS and they have stated the same in all their declarations while claiming the benefit of Notification No. 67/95. It was contended that the Commissioner, Mangalore, in the impugned order, has dealt with the question of marketability and has given a finding that the impugned product is marketable. Further, reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Normally the customers insist upon 50 cst @100°C 6000 cst @ 50° C (ii) Flash Point (min.) 66 Deg. C 100 Deg. C (iii) Sulphur Less than 1% Less than 1% We have gone through the flow diagram of SR from Vacuum column and found that HSD/Kerosene is injected to get the required viscosity of 50 cst @ 100°C. In the tender for sale of LSHS, the specification as per IS 11489-1985 has been given. From the above document, it is very clear that the specification of LSHS which is marketed is completely different from that consumed captively. In view of the above, we are of the view that the impugned product, as such is not marketable even though it is loosely termed as LSHS. Since the impugned product is not marketable, the same is not excisable. If the impugned product is not excisable, there is no merit in the demand of duties. [Emphasis supplied] 11. As on date, this decision of the Banglore Tribunal has not been stayed or overturned. Therefore, the issue has reached finality. 12. So far as the Indian Oil Corporation Litd. Vs. CCE, Baroda, decision of Supreme Court cited by the AR is concerned, in that case it gets clarified that the appellants were also selling ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
