(Per : HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We have heard Ms. Sejal K. Mandavia, learned Counsel appearing for Central Excise & Customs Department in this Tax Appeal filed under section 35(G) of the Central Excise Act, 1944 (for short the 'Act') on the following proposed questions of law which reads as under :
(I) Whether the CESTAT was right in law in allowing the appeal of the respondent, by relying upon the case law of BPCL, particularly when the facts of both the cases are totally different and distinguishable ?
(II) Whether the Additional Duty of Excise (High Speed Diesel Oil) levied under section 133 of the Finance Act, 1999, is payable on High Speed Diesel Oil, when supplied to Indian Navy, for consumption on board of vessels, in terms of notification No. 64/95-CE dated 16.03.1995 ?
(III) Whether the goods lying in warehouse as on 06.09.2004 are liable to pay Central Excise duty, when the warehousing facility was withdrawn vide notification No.17/2004-CE(NT) dated 04.09.2004 ?
2. The Customs Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (for short the 'Tribunal') by judgment in Appeal No.E/2052 of 2006 has been dismissed by the Tribunal on 22.11.2011.
3. Learned Counsel Ms. Sejal K. Mandavia has very fairly informed that the questions involved in these appeals are recovered by the Division Bench in Tax Appeal No.435 of 2008 reported in the case of The Commissioner of Central Excise & Customs V/s. Indian Oil Corporation Ltd. decided on 18.04.2012. Since the Order is short, we extract the entire Order as under :
"This Appeal under Section 35G of the Central Excise Act, 1944 ["the Act"] is at the instance of the Revenue and is directed against order dated August 21, 2007 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad ["the Tribunal"] in Appeal No. E/405/2006, by which the Tribunal allowed the appeal preferred by the assessee.
Being dissatisfied, the Revenue has come up with the present Appeal.
After hearing Mr. Y.N. Ravani, learned counsel appearing on behalf of the appellant and Ms. Padmavati Patil, learned counsel appearing on behalf of the assessee and after going through the materials on record, we find that the Tribunal relied upon the decision of the Bengalaru Tribunal in the case of M/s. BPCL v. CCE, Mangalore, reported in 2007 [78] RLT 414, wherein, it was laid down that benefit of notification cannot be denied in respect of warehoused goods, on withdrawal of warehousing facility, when the goods are otherwise exempted.
It appears that the Karnataka High Court has affirmed the said decision and in view of such fact, in the past, the Revenue did not press this Appeal.
Subsequently however, on an application of the Revenue, the present Appeal was restored vide order dated November 11, 2011 passed by a Division Bench of this Court.
Mr. Ravani, learned counsel appearing on behalf of the appellant tried to convince us that the factual difference in this case from the one relied upon by the Tribunal was that in that case, duty was exempted whereas in the case before us, the same is not exempted.
Our attention has been drawn to General Exemption No. 24 of the Notification No. 64/95-CE, dated March 16, 1995, wherein, at Sr. No. 3, it is specifically pointed out that all goods other than cigarettes if supplied as stores for consumption on board a vessel of the Indian Navy or Coast Guard, are exempted.
Such being the position, we find that the Tribunal below rightly granted relief to the assessee and we find that no substantial question of law is involved in this Appeal. The Appeal is consequently dismissed."
4. In view of the aforesaid decision which squarely applies to the issue involved in this tax appeal, no substantial question of law arises for our consideration in this tax appeal. This tax appeal is accordingly dismissed.
(V.
M. SAHAI, J.) (N.
V. ANJARIA, J.) Sunil W. Wagh Top