Custom, Excise & Service Tax Tribunal
Fertilizer Corporation Of India vs Commissioner Of Central Excise, Ranchi on 11 August, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Misc. Application E/M-75471/2016
And
Appeal No. E/ 379/2005
(Arising out of Order-in-Original No. 83-84/MP/Commr/2004-05 date 28/10/2004 Passed by the Commissioner of Central Excise, Ranchi.
FOR APPROVAL AND SIGNATURE
HONBLE SHRI H.K.THAKUR, MEMBER (TECHNICAL)
HONBLE SHRI P. K. CHOUDHARY 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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
Fertilizer Corporation of India
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Ranchi
Respondent (s)
Appearance:
Shri D. K. Dhar & B. Mondal, Advocate of the Appellant (s) Shri K. Choudhari, suptd (AR) for the Respondent (s) CORAM:
HONBLE SHRI H.K.THAKUR, MEMBER (TECHNICAL) HONBLE SHRI P. K. CHOUDHARY MEMBER (JUDICIAL) Date of Hearing/Decision: 11.08.16 ORDER No.FO/A/75906/16 Per Shri H.K.Thakur This appeal has been filed by the Appellant with respect to OIO No. 83-84/MP/Commr/2004-05 dt 28/10/2004 issued by CCE, Ranchi as Adjudication authority.
2. Sh D. K. Dhar (Advocate) and Ms Bithika Mondal (Advocate) appeared on behalf of the appellant. Sh. D. K. Dhar argued that two show cause notices were issued to the appellant on the ground that Furnance Oil (FO), claimed to be used as feedstock in the manufacture of fertilizers (Urea), by following Chapter-X procedure, as per Notification No. 5/19998-CE dt 2/6/1998. That duty on FO was attracting NIL rate of duty if used as feed stock and @ 5% if used for purposes other than Feedstock. That under Notification No. 5/1999-CE dt 28/2/1999 the above rate of 5% was enhanced to 8%. That appellant was relying upon Patna High Court order dt 18/1/99 in CWP No. 4888 of 1987 filed by the appellant and contesting that entire FO was used as feed stock. That the ratio laid by Patna High Court has been reversed by Apex Court. That through MA Appellant has made a case for the following additional new ground.:-
(a) For that the appellant was liable to pay duty at the rate of 5% under notification No. 5/98 CE dated 2nd June, 1998 and 8% under notification No. 5/99 CE dated 28th February, 1998 on F.O. used for generation of steam for manufacture of fertilizer .
(b) For that the appellant was not liable to pay duty on 40% of F. O. which were used as Feed Stock in the Steam Generation Plant. 2.1. That out of the total F.O. received 40% was used as Feed Stock for which exemption as per Sr. No. 14 of Notification No. 5/1998 CE dt 2/6/1998 is applicable. That for the remaining quantity of EO Sr. No. 15 of the table to Notification No. 5/1998-CO, as amended, is applicable and duty is leviable @ 5% or 8% and not at the tariff rate as per the law laid down by Apex Court.
3. Sh. K. Choudhari (Suptd) AR appearing on behalf of the Revenue argued that the additional grounds now raised by the appellant were not raised before the adjudicating authority. That it is not known whether 100% Furnance Oil FO was used for generating electricity / steam which is being claimed to be used captively in the factory of the appellant. It was also his case that 40% of the FO claimed to be used as feed stock in the additional grounds also needs verification.
4. Heard both sides & perused the case records. Appellant earlier was claiming that FO used for generating Steem has to be treated as feed Stock as per Patna High Courts order dt 18/1/99 in WP No. 4888 of 1987 in appellants own case which has been reversed by Apex Court. Appellant has now taken alterative additional grounds that 40% of the FO was actually used as feed Stock and for the remaining quantity of FO also either 5% or 8% duty rate of duty will be applicable as per Sr No. 15 of the table to Notification No. 5/98-CE & 5/99-CE. It is observed from the case records that both Sr No. 14 & 15 of the table annexed to Notification No. 5/99-CE are subject to certain conditions. Further the quantities claimed to be used as feed stock or for other purposes also needs verification. Onus of claiming an exemption notification is on the assessee to satisfy that all the conditions of an exemption notification, including the quantities claimed to be entitled to exemption. In the interest of justice, after allowing MA, we remand the case back to the Adjudicating authority. Appellant should stake their alternative claims before adjudicating authority as these claims were not raised in the earlier adjudicating proceedings and demonstrate that conditions of the exemption notification are fulfilled. We make it clear that bench has not made any observation on the merits of the case and all the issues have been kept open for the adjudicating authority to deliberate upon.
5. Appeal filed by the appellant is allowed by way of remand to the Adjudicating authority for denovo adjudication after giving the appellant an opportunity of hearing to explain their case, M. A. filed by the appellant is also disposed of.
(Operative part of the order was pronounced in the open court.) (P.K. CHOUDHARY) (H.K. THAKUR) JUDICIAL MEMBER TECHNICAL MEMBER T.K 4 Appeal No.E379/2005