Commissioner Of Central Excise, ... vs Gokak Sugars Ltd

[Arising out of Order-in-Appeal No. BGM-EXCUS-000-BEL-ADC-APP-HAB-060-2014 dated 28/08/2014 passed by the Commissioner of Central Excise, Mysore]

For approval and signature:

HON'BLE MRS. ARCHANA WADHWA, JUDICIAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Commissioner of Central Excise, Customs and Service Tax, Belgaum No. 71, Club Road, Central Excise Building, Belgaum  590 001 Karnataka Appellant(s) Versus Gokak Sugars Ltd. Kolavi, Taluka-Gokak, Dist. Belgaum Karnataka Respondent(s)

Appearance:

Mr. S. Teli, DR For the Appellant

Mr. J.M. Somaiya, Advocate 328, D-10, Royal Plaza, Dabholkar Corner, Kolhapur  416 001 For the Respondent

Date of Hearing: 26/06/2015 Date of Decision: 26/06/2015 CORAM:

HON'BLE MRS. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 21494 / 2015

Per: ARCHANA WADHWA

After rejecting the stay petition filed by the Revenue against the impugned order of Commissioner (Appeals) vide which he has set aside the demand, I proceed to decide the appeal itself inasmuch as a short issue covered by the precedent decisions is involved.

2. The respondent is engaged in the manufacture of sugar and molasses and during the course of manufacture of the said final products, bagasse emerges as a waste/by-product. As the respondent is availing the cenvat credit of duty paid on various inputs, Revenue by treating the said bagasse as excisable product, after the insertion of explanation 2(d) of Central Excise Act, has held that since the said bagasse is exempted, the same is liable to pay 6% of the value of the same in terms of Rule 6(3) of Cenvat Credit Rules. The confirmation of demand of duty along with interest and imposition of penalty upon the respondent, by the original adjudicating authority, stands set aside by Commissioner (Appeals) by following the Honble Allahabad High Court decision in the case of Balrampur Chini Mills Ltd. Vs. Union of India [2014 (300) E.L.T. 372 (All.)]. Vide the said decision, the Honble High Court has quashed the Boards Circular No. 904/24/2009-CX., dated 28.10.2009.

3. Revenue in their memorandum of appeal has not referred to the said Allahabad High Court decision and has not contested the applicability of the same. On the other hand they have merely raised the grounds on merits and has also referred to the Honble Madras High Courts decision in the case of EID Parry (I) Ltd. [2013 (293) E.L.T. 10 (Mad.)] and has contended that the said decision has not been accepted by the Revenue and a SLP has been filed before the Honble Supreme Court. As such it is their contention that till Supreme Court decides the issue, the matter be kept pending.

4. However the Revenue has not been able to show that the said decision of the Honble Chennai High Court stands stayed by the Honble Supreme Court. Further it is also not known as to whether the Allahabad High Court decision, in the case of Balrampur Chini Mills Ltd., which is fully applicable to the facts of the present case stands appealed against by the Revenue or stands stayed by the Honble Supreme Court. Apart from the said decision, I also note that the issue stands decided by the other decisions also. Some reference can be made to the Allahabad High Court decision in the case of CCE, Lucknow Vs. Kisan Sahakari Chini Mills Ltd. [2014 (302) E.L.T. 346 (All.)] as also to another decision of the Honble High Court in the case of CCE, Lucknow Vs. DSCL Sugar [2014 (304) E.L.T. 33 (All.)]. The said decision also stands followed by the Tribunal in a number of decisions. One such reference can be made to Tribunal decision in the case of Delta Sugars Ltd. Vs. CCE, Guntur [2013-TIOL-1537-CESTAT-BANG.] as also to the Tribunal decision in the case of Triveni Engg. & Industries Ltd. Vs. CCE, Allahabad [2014 (302) E.L.T. 246 (Tri.-Del.)] as also in the case of M/s. KCP Sugar and Industries Corporation Ltd. Vs. CCE, Guntur [2013-TIOL-699-CESTAT-BANG.].

5. Inasmuch as the issue is decided by catena of precedent decisions, I find no infirmity in the views of Commissioner (Appeals). Accordingly Revenues appeal is rejected. Stay petition and appeal get disposed of in the above manner.

(Order pronounced in open court)

(ARCHANA WADHWA) JUDICIAL MEMBER

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