Custom, Excise & Service Tax Tribunal
Cce, Ghaziabad vs Delta Food Pvt. Ltd on 23 April, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
BENCH-DB
COURT-III
Excise Appeal No.E/1574/2006-EX[DB]
[Arising out of Order-in-Appeal No.16-CE/GZB/06 dated 24.02.2006 passed by the 24.02.2006 passed by the Commissioner (Appeals), Central Excise, Ghaziabad]
For approval and signature:
HONBLE MR. RAKESH KUMAR, MEMBER (TECHNICAL)
HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
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?
__________________________________________________
CCE, Ghaziabad Appellant
Vs.
Delta Food Pvt. Ltd. Respondent
Present for the Appellant : Shri.Ranjan Khanna, DR
Present for the Respondent: Shri. R.Krishnan, Advocate
Coram:HONBLE MR. RAKESH KUMAR, MEMBER (TECHNICAL)
HONBLE MR.S.K. MOHANTY, MEMBER (JUDICIAL)
Date of Hearing/Decision: 23/04/2015
FINAL ORDER NO. 51537/2015
PER: RAKESH KUMAR
The respondents are manufacturers of biscuits. They availed cenvat credit of central excise duty paid on inputs used in or in relation to manufacture of biscuits were being cleared on payment of duty. In the course of manufacture of biscuits, waste in the form of flour sweeping of broken biscuits, and dough arises which was being removed without payment of duty. The Department being of the view that the waste is exempted excisable goods, the provisions of Rule 6 (3) of Cenvat Credit Rules would be applicable, as the appellant have used common cenvat credit availed inputs for manufacture of dutiable final products (biscuits) and exempted final product (waste), initiated proceedings for demand of an amount under Rule 6 (3) in respect of clearances of waste. It is on this basis that an Assistant Commissioner vide Order-in-Original dated 28.09.2004 confirmed an amount of Rs.81,772/- against the respondent alongwith interest and imposed penalty of Rs.10,000/- on them under Rule 13 of the Cenvat Credit Rules, 2002.. Against this order of the Assistant Commissioner the respondent filed an appeal before the Commissioner (Appeals), which was allowed vide Order in Appeal dated 17.01.2005 and, accordingly, by this order the Commissioner (Appeals) set aside the Assistant Commissioners order. The Department, however, subsequently filed a review appeal against the same order of the Assistant Commissioner seeking imposition of penalty on the respondent under section 11AC. But by the time this appeal came up for hearing before the Commissioner (Appeals), the earlier appeal filed by the respondent had been allowed. Accordingly, Commissioner (Appeals), vide order dated 24.02.2006, dismissed the Departments appeal on the ground that since Order-in-Original dated 28.09.2004 passed by the Assistant Commissioner has been quashed, the Revenues appeal for enhancement of the penalty become redundant. Against this order dated 24.02.2006 of the Commissioner (Appeals), this appeal has been filed by the Revenue seeking imposition of penalty on the respondent under section 11AC.
2. Heard both the sides.
3. Both the sides agree that against the Commissioner (Appeals) order dated 17.01.2005 setting aside the Assistant Commissioners orders dated 28.09.2004, the Revenue had filed an appeal before the Tribunal and that appeal has been dismissed by the Tribunal and also the Tribunals order has been accepted by the Department. In view of this, the present appeal also would not survive. The same is dismissed.
[Dictated & Pronounced in the open Court].
(S.K.MOHANTY) (RAKESH KUMAR) MEMBER (JUDICIAL) MEMBER (TECHNICAL) Anita ?? ?? ?? ?? 0 3