2025 (5) TMI 478 - AT - Central Excise

Maintainability of Department s appeal against the order of the Commissioner (Appeals) given that the same order has already been set aside by the Tribunal in a prior appeal preferred by the assessee - HELD THAT - As could be noticed from the development of the proceedings initiated after issue of Show-cause vide Order-In-Original dated 30.08.2013 in ORCHID CHEMICALS PHARMACEUTICALS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AURANGABAD 2017 (4) TMI 799 - CESTAT MUMBAI the entire demand of excise duty in the show cause was confirmed alongwith interest and proportionate penalty against which Appellant preferred appeal No. E/85851/2014-Mumbai that was admittedly disposed of by the Tribunal by setting aside the order passed by the Commissioner (Appeals) on 30.08.2013. The appeal filed by the Department is dismissed since the relief sought in the said appeal seeking non application of cum-duty benefit could not be extended when duty demand as such was held to be unsustainable. Appeal dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

- Whether the Department's appeal against the order of the Commissioner (Appeals) is maintainable given that the same order has already been set aside by the Tribunal in a prior appeal preferred by the assessee.

- Whether the demand of excise duty confirmed by the Order-in-Original dated 30.08.2013 can be sustained when the Tribunal in a related appeal held that the process in question does not amount to manufacture under Section 2(f) of the Central Excise Act, 1944.

- Whether the cum-duty benefit can be denied to the assessee by the Department when the original duty demand itself has been held unsustainable.

- The legality and maintainability of the entire show cause notice issued invoking provisions of Section 2(f) of the Central Excise Act, 1944.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Maintainability of the Department's appeal against the Commissioner (Appeals) order already set aside by the Tribunal

Relevant legal framework and precedents: The appellate jurisdiction of the Tribunal and the principle of res judicata or finality of orders passed by the Tribunal in prior appeals.

Court's interpretation and reasoning: The Tribunal noted that the order passed by the Commissioner (Appeals) on 23.12.2013, which was the subject matter of the Department's appeal, had already been set aside by the Tribunal on 29.03.2017 in appeal No. E/85851/2014-Mumbai preferred by the assessee. The Department accepted this fact by filing a letter dated 24.01.2025. Consequently, the Tribunal held that since the impugned order had been set aside in the assessee's appeal, nothing survived in the Department's appeal to be adjudicated.

Application of law to facts: The Department's appeal was thus rendered infructuous as the same order had already been quashed in the assessee's appeal, leading to the dismissal of the Department's appeal on grounds of maintainability and absence of any surviving cause of action.

Issue 2: Sustainability of excise duty demand based on Section 2(f) of the Central Excise Act, 1944

Relevant legal framework and precedents: Section 2(f) defines "manufacture" under the Central Excise Act. The Tribunal referred to its earlier precedents in the cases of Aurobindo Pharma Ltd and Lee Pharma Pvt Ltd, which held that the process of purification of mixed solvents does not amount to manufacture attracting excise duty.

Court's interpretation and reasoning: The Tribunal observed that the show cause notices alleged that the process carried out was manufacture under Section 2(f), but this proposition had been negatived by the Tribunal in the cited precedents. Therefore, the demand of excise duty based on such a classification was not sustainable.

Key evidence and findings: The Tribunal relied on the judicial precedents and the factual similarity of the process involved to those cases where the process was held not to amount to manufacture.

Application of law to facts: Since the process was not manufacture, the invocation of Section 2(f) for levy of duty was incorrect, rendering the entire demand unsustainable.

Treatment of competing arguments: Although the Department sought to deny cum-duty benefit, the Tribunal found that such denial was irrelevant since the foundational duty demand itself was invalid.

Issue 3: Legality of denial of cum-duty benefit when the original duty demand is unsustainable

Relevant legal framework: Principles of excise law regarding cum-duty benefit, which allows credit of excise duty paid on inputs or raw materials in certain circumstances.

Court's interpretation and reasoning: The Commissioner (Appeals) had partly allowed the assessee's appeal by extending cum-duty benefit and remanding the matter for re-computation of duty and penalty. The Department contested this extension. However, the Tribunal noted that since the entire demand was held unsustainable, the question of denying cum-duty benefit did not arise.

Application of law to facts: The denial of cum-duty benefit by the Department was held to be untenable as the underlying duty demand was quashed.

Issue 4: Maintainability of the show cause notice invoking Section 2(f)

Relevant legal framework and precedents: The validity of show cause notices and the requirement that they invoke correct legal provisions.

Court's interpretation and reasoning: The Tribunal found that the show cause notices failed to invoke Section 2(d) of the Central Excise Act and instead relied solely on Section 2(f) for the demand. Given the judicial precedents negating the applicability of Section 2(f) for the process in question, the show cause notices were held to be not maintainable.

Application of law to facts: The show cause notices were invalid as they were based on incorrect legal grounds.

3. SIGNIFICANT HOLDINGS

"Even with the enactment of provisions of Section 2(d) of the Central Excise Act, 1944, the demand raised on the appellant does not get fastened for the simple reason that the show cause notice does not invoke the provisions of Section 2(d) of the Central Excise Act, 1944. All the show cause notices are alleging that the process that is carried out for the purification of the mixed solvents amounts to manufacture as per the provision of Section 2(f) of the Central Excise Act, 1944. Since the said proposition is already decided by the Tribunal in the case of Aurobindo Pharma Ltd and followed in the case of Lee Pharma Pvt Ltd., the question of demanding any duty from the appellant on this invocation of the provisions of Section 2(f) does not arise."

Core principles established:

- A show cause notice must invoke the correct legal provisions to sustain a demand; incorrect invocation renders the notice not maintainable.

- The process of purification of mixed solvents does not amount to manufacture under Section 2(f) of the Central Excise Act, 1944, and therefore, excise duty demand on such process is unsustainable.

- Once the foundational duty demand is quashed, ancillary issues such as denial of cum-duty benefit become irrelevant.

- An appellate order set aside by the Tribunal in a prior appeal cannot be the subject matter of a fresh appeal by the Department; such appeal is liable to be dismissed.

Final determinations:

- The Department's appeal is dismissed as the impugned order has already been set aside by the Tribunal in the assessee's appeal.

- The excise duty demand based on Section 2(f) is unsustainable and the show cause notice is not maintainable.

- The denial of cum-duty benefit