HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH PRESENT THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR CENTRAL EXCISE APPEAL No.84 OF 2014 DATED: 16.07.2014 Between:
The Commissioner of Customs Central Excise and Service Tax, Guntur … Appellant And M/s.Delta Sugars Limited … Respondent THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR CENTRAL EXCISE APPEAL No.84 of 2014
JUDGMENT: (per the Hon’ble Sri Justice Sanjay Kumar)
The order dated 29.08.2013 of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore, in Appeal No.E/2395/2012-DB is sought to be challenged by the Revenue raising the following substantial questions of law.
“(a) Whether the Hon’ble CESTAT, Bangalore is justified in relying on the decision of Hon’ble Allahabad High Court in the case of Balarampur Chini Mills Ltd Vs Union of India and Others, when the appellant is not within the jurisdiction of the Hon’ble Allahabad High Court, against which a Special Leave Petition (Civil) No.23515/2012 preferred by the Revenue, which is converted into Civil Appeal No.3949/2013 and connected to Appeal Civil No.5322/2010 that is pending before the Hon’ble Supreme Court?
(b) Whether the Hon’ble CESTAT, Bangalore is justified in allowing the appeal filed by the assessee by extending the relief, which would be contrary to the statutory provisions contained in Rule 6(3) of Cenvat Credit Rules, 2004?
(c) Whether the Hon’ble CESTAT, Bangalore is justified in finding the bagasse to be a marketable product but not as a manufactured product which is contrary to the clarification on excisability of Bagasse in terms of Board Circular No.904/24/09-CX Dated 28.10.2009?
(d) Whether the Hon’ble CESTAT, Bangalore is justified in allowing the assessee’s appeal which is contrary to the clarification of Board’s Circular No.904/24/09-CX Dated 28.10.2009, wherein clarified that with the amendment in Section 2(d) of Central Excise Act, 1944, bagasse which arise during the course of manufacture and are capable of being sold for consideration would be excisable goods and chargeable to payment of excise duty?”
Perusal of the order under appeal reflects that the Tribunal decided the matter being of the view that it was covered by the judgment of Allahabad High Court in
[1]
Balarampur Chini Mills Ltd v. Union of India and others which was, in turn, relied upon by the Coordinate Bench of the Tribunal at Mumbai in Shree Renuka Sugars Ltd v.
[2]
Commissioner of Central Excise, Kolhapur . Finding that the issue raised in the appeal was squarely covered by the aforestated decisions, the Tribunal allowed the assessee’s appeal.
The Revenue states that the judgment of Allahabad High Court is yet to attain finality as a Special Leave Petition has been filed against the same and is pending before the Supreme Court. However, there is neither any averment in the appeal grounds nor is any material placed before us as to the status of the decision in Shree Renuka Sugars Limited. The said decision appears to have attained finality.
In that view of the matter, we find no reason to interfere with the order under appeal.
The appeal is therefore dismissed. Pending miscellaneous petitions, if any, shall also stand dismissed. No order as to costs.
16th JULY, 2014.
K.J. SENGUPTA, CJ
kvni
[1] W.P.No.11791 of 2010
[2] 2013-TIOL-457-CESTAT-MUM
SANJAY KUMAR, J