Commissioner Of Central Excise vs Kothari Sugars And Chemicals Ltd

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

Appeal No.E/1099/2004

[Arising out of Order-in-Appeal No.178/2004 (SCN) TRY-II dt. 25.6.2004 passed by the Commissioner of Customs & Central Excise (Appeals), Trichy]

Commissioner of Central Excise, Tiruchirapalli Appellant

Versus

Kothari Sugars and Chemicals Ltd. Respondent

Appearance:

Shri K.P.Muralidharan, AC (AR) For the Appellant

Shri P.C. Anand, Consultant For the Respondent

CORAM :

Honble Shri R. Periasami, Technical Member Honble Shri P.K. Choudhary, Judicial Member

Date of Hearing/Decision : 8.6.2015

FINAL ORDER No.40619/2015

Per R. Periasami

Revenue filed appeal against Commissioner (Appeals) order dt.25.6.2004. The short issue in this appeal relates to reversal of cenvat credit on furnace oil used in generation of steam and in turn used in the manufacture of electricity. Adjudicating authority confirmed the demand of Rs.11,74,344/- and also imposed penalty of Rs.10,000/- vide order dt. 25.3.2004. On appeal, the Commissioner (Appeals) has set aside the impugned order and allowed the appeal by relying the Tribunal's decision of this Bench in the case of CCE Tirunelveli Vs Sudarshanam Spinning Mills reported in 2004 (166) ELT 461 (Tri.-Che.).

2. Ld. A.R reiterates the grounds of appeal and submits that the issue is pending before the Hon'ble Supreme Court in the case of CCE Vadodara Vs Gujarat Narmada Valley Fertilizers Co.Ltd. - 2012 (286) ELT 481 (SC) where the two Judges of Hon'ble Supreme Court has recommended for placing it before Larger Bench.

3. On the other hand, Ld. Advocate submits that Revenue filed a C.M.A against Tribunal's decision in the case of Sudarshanam Spinning Mills (supra) before the Hon'ble High Court of Madras. The Hon'ble High Court dismissed the C.M.A.No.1636 of 2005 by its order dt. 4.8.2011 and upheld Tribunal's order.

4. After hearing the submissions of both sides, we find that Commissioner (Appeals) has allowed the respondent's appeal and held that furnace oil used in the generation of steam which in turn used for manufacture of electricity following Tribunal's decision in the case of CCE Vs Sudarshanam Spinning Mills (supra) which was challenged by Revenue before Hon'ble High Court, Madras in C.M.A.No.1636/2005. The Hon'ble High Court by its order dt. 4.8.2011 dismissed the CMA filed by Revenue upholding Tribunal's decision on the issue. Therefore, the issue has attained finality in view of judgement of Hon'ble High Court, Madras. Therefore, judgement of jurisdictional High Court, Madras is binding on this Tribunal. Accordingly, we hold that respondents are eligible for cenvat credit on furnace oil. By respectfully following the Hon'ble High Court's order (supra), we find that there is no infirmity in the order of the L.A.A. Accordingly, Revenue's appeal is rejected and the impugned the order is upheld.

(Dictated and pronounced in open court)

(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER

gs 2