Custom, Excise & Service Tax Tribunal
M/S Indian Oil Corporation Ltd vs C.C.E., Kanpur on 7 November, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
REGIONAL BENCH : ALLAHABAD
STAY Application No.E/Stay/1552 & 1553/2005
AND
Appeal Nos.E/2056 & 2057/2005-EX[DB]
Arising out of Order-in-Appeal No.80/CE/APPL/KNP/05 dated 15.02.2005 passed by Commissioner (Appeals) Customs & Central Excise, Kanpur.
For approval and signature:
HONBLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL)
HONBLE MR. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL)
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? : Yes
3. Whether His Lordship wishes to see the fair copy
of the Order? : Seen
4. Whether Order is to be circulated to the Departmental
Authorities? : Yes
M/s Indian Oil Corporation Ltd.
APPELLANT(S)
VERSUS
C.C.E., Kanpur
RESPONDENT (S)
APPEARANCE Shri Mohd. Aslam Siddiqui, (Rreprsentative) for the Appellant (s) Shri Pawan Kumar Singh, Supdt. (A.R.) for the Department (s) CORAM:
HONBLE MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) HONBLE MR. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) DATE OF HEARING & PRONOUNCEMENT: 07.11.2016 FINAL ORDER NO.- 71055-71056/2016 _______ Per Mr. Anil Choudhary :
This appeal is filed by the appellant, M/s Indian Oil Corporation, against Order-in-Appeal No.80/CE/APPL/KNP/05 dated 15.02.2005 passed by Commissioner (Appeals).
2. Heard the parties.
3. The issue in this Appeal is whether the appellant is entitled to exemption under Notification No.4/97-CE read with Notification Nos.5/98-CE & 5/99-CE which provides the tariff rate of duty on items classifiable under Chapter Sub-Heading-2710.90 was 15% Advalorum w.e.f. 23.07.1996. The duty on Kerosene Oil was specified @ 10% Advalorum vide Notification No.8/96-CE, subject to the condition The expression Kerosene shall refer to any Hydrocarbon Oil (excluding mineral colza oil and white spirit) which had a smoke point of 18 mm or more (determined in the apparatus known as smoke point lamp in the manner included in the Bureau of Standards specification ISI 1448(p.31)-1968 as in force for the time being) and was ordinarily used as illuminant in oil burning lamps.
4. The issue is no longer res-Integra and the same have been adjudicated by Honble Supreme Court in appellants own case, Indian Oil Corporation Ltd. Vs. Commissioner of C. Ex., reported at 2010 (259) E.L.T. 172 (SC), wherein Para 17 have been held as follows :- From a bare perusal of the two notifications it is evident that the benefit of concessional rate of duty extends only to that variety of kerosene that : (i) has a smoke point of 18mm or more, and (ii) is ordinarily used as an illuminant in oil burning lamps. It is manifest that these two conditions are conjunctive, and therefore, the twin conditions need to be satisfied in order to avail of the concessional rate of duty. In the instant case, the fact that the assessee cleared kerosene manufactured by it to industrial consumers would entail that the assessee cannot claim the benefit of Notification No.5/98-CE, and 5/99-CE.
5. Admittedly, the appellant have cleared Kerosene-Linear Alkyi Benzena Feed Stock (LABFS) and/or Low Aluminium Rolling Oil (LARO) to industrial consumers and as such, the appellant is not entitled to concessional rate of duty under the Notifications in question. Accordingly, these appeals are dismissed. The stay application also stands disposed of. Appellant is directed to deposit the amount in dispute within a period of 45 days along with appropriate interest as per Rules with the Adjudicating Authority on receipt of this Order. Penalty is also confirmed.
(Dictated and Pronounced in the open Court)
SD/ SD/
(ANIL G. SHAKKARWAR) (ANIL CHOUDHARY)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
Mishra
3
Appeal Nos.E/2056 & 2057/05