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2010 DIGILAW 154 (KAR)

Commissioner of Central Excise. v. Mother Dairy

2010-02-05

D.V.SHYLENDRA KUMAR, N.ANANDA

body2010
JUDGMENT D.V. Shylendra Kumar, J.— This is an appeal filed by the Revenue-Commissioner of Central Excise, under Section 35G of the Central Excise Act, 1944, directed against the Order passed by the CESTAT, South Zone Bench, Bangalore, in terms of the Order No. 1154/2008, dated 24-&-2008 [2009 (245) E.L.T. 413 (Tri. - Bang.)] 2. The first adjudicating authority allowed the refund application of the assessee in part to the extent of Rs. 43,414/- by its order 4ated 23-8-2007. 3. The assessee appealed. The first appellate authority set aside the order of the first adjudicating authority by its order dated 30-1-2008 and ordered full relief on the refund application that had been filed by the assessee for refund of a sum of Rs. 82,886/- as against the order passed by the first appellate authority granting partial relief to the extent of Rs. 43,414/-. 4. Against the said order, the revenue appealed to the CESTAT. The CESTAT dismissed the appeal of the Revenue on 24-9-2008. Thus, the further appeal by the Revenue to this Court under Section 35G. 5. The assessee had claimed refund on the premise that its product-ice-cream, which was an excisable product up to 1-3-2006, thereafter became a non-excisable product and therefore, the CENVAT credit outstanding in the name of assessee's account should be refunded. 6. The Adjudicating Officer allowed the application in part and disallowed the application in so far as the credit related to the excise duty with reference to the stock and unfinished products in the custody of the assessee. 7. Appearing on behalf of the appellant, submission of Sri Anoop Kumar is that the appellate authority as well as the Tribunal have erred in ignoring the stock in trade which would have been produced before the cut off date of 1-3-2006. CENVAT credit could be availed on manufactured goods and to that extent the assessee was not entitled to claim refund. The adjudicating authority had rightly looked into the available stock which remained in the possession of the assessee without being cleared at the factory gate and to that extent CENVAT credit having already credited, there was a duty liability and if the Adjudicating Officer disallowed the claim of refund to this extent, the Order is definitely valid in law and should not have been interfered by the first appellate authority and affirmed by the second appellate authority, etc. 8. 8. Even assuming that as to when exactly the duty liability arises would be a question of law and that in turn depending upon the facts and circumstance of each case and in this ease, the differential of duty liability being a meager sum of Rs. 50,000/- and that too in respect of a product on which, State did not want to levy duty after 1-3-2006, we are of the definite opinion that, this is not a matter deserving our attention in exercise of jurisdiction under Section 35G of the Act, irrespective of submissions made and accordingly, the appeal is dismissed at the stage of admission.