Commissioner of Central Excise Vs. Srinivas Chem. Inds.

Commissioner of Central Excise vs Srinivas Chem. Inds.

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Oct 13, 2003

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Citation: sooperkanoon.com/32652
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: M T K.D.
Decided On: Oct 13, 2003
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

Commissioner of Central Excise

Respondent

Srinivas Chem. Inds.

Excerpt

.....rule 173(l) and sanctioned the same. the said order was challenged by the commissioner of central excise by the filling an appeal before commissioner (appeals), who rejected the department's appeal. the present appeal of the revenue is directed against the order of rejection passed by commissioner (appeal).3. in the instant appeal, it is claimed that in order to qualify for obtaining refund under rule 173(l), the goods should undergo a process of manufacture. re-distillation process in the instant case does not amount to manufacture. it is pleaded in the revenue's appeal that the commissioner (appeal) was, therefore, in error in upholding assistant commissioner's order.4. as can be seen from the facts of the case that the grounds enumerated in the revenue's appeal were not urged in the show cause notice issued to the respondents proposing disallowing the claim of refund under rule 173l. in the department's appeal before the commissioner (appeals), lack of correlation between the returned goods and those cleared subsequently was raised. the same has been adequately dealt with by the commissioner (appeals) in his impugned order.therefore, the same is not even raised in the grounds of appeal before the tribunal. the grounds that redistillation process does not amount to manufacture was not raised in the appeal before the commissioner (appeals). therefore, in the instant appeal this ground cannot be pleaded to challenge the correctness of the impugned order. the initial show cause notice also did not raise this ground for denial of refund.the grounds for proposed rejection of refund were totally different.5. accordingly, the appeal filed by the revenue is without any merit and is rejected.(operative part of this order pronounced in the court on the date of hearing)

Full Judgment

2. This is Revenue's appeal. The case of the respondents is that the goods "piperidinol" cleared by them originally on 24/11/1990 on paying excise duty of Rs. 10,631.25 were returned by the customer because there was some problem with the material. The material was received back in their factory on 14/05/1991 alongwith the original gate pass.

The rejected material was verified on 17.05.1991, by the range staff.

Thereafter, the respondents carried out the re-distillation of the said rejected material and subsequently cleared, the same to another customer on payment of duty amounting to Rs. 12,424.40. On verification of refund claim, it was observed that the respondents had not submitted the original duty paying documents and had not mentioned the specified processes carried out on the returned goods. The respondents contested the show cause notice issued to them proposing rejection of the claim on these grounds and furnished the original gate pass. They also produced the Form V register wherein the process of re-distillation was mentioned. The Assistant Commissioner, in adjudication, had held the claim to be covered by the provisions of Rule 173(L) and sanctioned the same. The said order was challenged by the Commissioner of Central Excise by the filling an appeal before Commissioner (Appeals), who rejected the Department's appeal. The present appeal of the Revenue is directed against the order of rejection passed by Commissioner (Appeal).

3. In the instant appeal, it is claimed that in order to qualify for obtaining refund under Rule 173(L), the goods should undergo a process of manufacture. Re-distillation process in the instant case does not amount to manufacture. It is pleaded in the revenue's appeal that the Commissioner (Appeal) was, therefore, in error in upholding Assistant Commissioner's order.

4. As can be seen from the facts of the case that the grounds enumerated in the Revenue's appeal were not urged in the show cause notice issued to the respondents proposing disallowing the claim of refund under rule 173L. In the Department's appeal before the Commissioner (Appeals), lack of correlation between the returned goods and those cleared subsequently was raised. The same has been adequately dealt with by the Commissioner (Appeals) in his impugned order.

Therefore, the same is not even raised in the grounds of appeal before the Tribunal. The grounds that redistillation process does not amount to manufacture was not raised in the appeal before the Commissioner (Appeals). Therefore, in the instant appeal this ground cannot be pleaded to challenge the correctness of the impugned order. The initial show cause notice also did not raise this ground for denial of refund.

The grounds for proposed rejection of refund were totally different.

5. Accordingly, the appeal filed by the Revenue is without any merit and is rejected.

(Operative part of this order pronounced in the Court on the date of hearing)

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties Commissioner of Central Excise vs Srinivas Chem. Inds. Same Subject Service Tax Same Judge M T K.D.