Custom, Excise & Service Tax Tribunal
C.C.E Bhopal vs M/S. Birla Corporation Ltd on 21 December, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. II
Appeal No. E/2864/2006-EX(DB)
[Arising out of Order-in-Original No. 49-CE/BPL/2006 dated 20.03.2006 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), New Delhi].
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
Hon'ble Shri B. Ravichandran, 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?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
C.C.E Bhopal .Appellants
Vs.
M/s. Birla Corporation Ltd. .Respondent
Appearance:
Shri R.K. Grover, DR for the appellant Neha Meena, Advocate for the Respondent CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial) Hon'ble Shri B. Ravichandran, Member (Technical) Date of Hearing: 21.12.2015 FINAL ORDER NO. 53847/2015-EX(DB) Per B. Ravichandran:
This appeal is by Revenue against order dated 20.03.2006 and Commissioner (A) Bhopal. The respondent are engaged in the manufacturing of cement and cement clinker liable to Central Excise duty. They are availing Cenvat Credit on furnace oil used in the generation of electricity. Some quantity of sludge arises during the course of storage of such furnace oil, used in their DG sets. Proceedings were initiated against the respondent for recovering an amount equal to Cenvat Credit taken on furnace oil treating the clearance of sludge as clearance of input furnace oil as such in terms of Rule 3 (4)(b) of Cenvat Credit Rules 2004.
2. The original authority vide his order dated 26.11.2005 confirming the demand of Rs. 21,600 and imposed equal penalty on the respondent. On appeal, the Commissioner (A) vide impugned order allowed the appeal and set aside the demand. Aggrieved by this, the revenue is in appeal before us.
3. The ld. AR reiterated the grounds of appeal to the effect that furnace oil includes the impurities and settles down in the storage tank as sludge. Since, the sludge is nothing but furnace oil and cannot be considered as waste. Since the said sludge has not been put into use as input, that much amount of credit taken is liable to be recovered when such sludge is cleared.
4. The Ld. Counsel for the respondent submitted that there is no legal ground to proceed against the respondent and the matter has already been settled by the Tribunal in the case of Larsen & Toubro Ltd. Vs. CCE Rajkot-2004 (173) ELT 575 (Tri-Bom) wherein it has been held that sludge is not arising out of any process of manufacturing in terms of section 2(F) of the Central Excise Act, 1999, and therefore, does not become exigible.
5. Heard both the sides and considered the appeal request.
3. We find that the Ld. Commissioner (A) examined the issue in detail and relying upon decision of the Tribunal in the case of Larsen & Toubro Ltd. (Supra) Ltd. arrived at his decision. We have no reason to interfere with the findings of the Ld. Commissioner (A). We note that the present appeal by the Department is frivolous and without any valid legal grounds whatsoever.
4. The appeal is accordingly dismissed.
(Operative part of the order pronounced in the open court)
(B. Ravichandran) (Ashok Jindal) Member (Technical) Member (Judicial)
Bhanu
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E/2864/2006-EX(DB)