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TMI Blog2016 (4) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... ose, it undertakes crushing and screening of iron ores. The iron ores fines that emerge is at the center of the controversy whether it is leviable to excise duty or not. The adjudicating authority held that if the process of crushing and screening of iron ores resulted in two products, one dutiable and the other exempted, there was liability to pay 10% of the value of the exempted products in terms of Rule 6 of the Cenvat Credit Rules as Common Cenvat products have gone into the manufacture of dutiable and exempted final products. The Commissioner (Appeals) relying on earlier decisions of the Tribunal, some of which relied on High Court decisions held that emergence of iron ores fines cannot be held to be a separate manufacturing activity a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court should examine the same again under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as 'the Act'). The financial involvement based on the liability assessed by the adjudicating authority was Rs. 22,64,177/- only along with the equal amount of penalty. The departmental representatives therefore had a bounden duty to protect the interest of Revenue by not paying lip service only to the filing of the appeal but even contesting it in accordance with law. Section 33 of the Act vests power in the adjudicating authority to assess duty, penalty including confiscation. The procedure for adjudication is provided in 33A. An appeal lies before the Commissioner (Appeals) under Section 35 of the Act against an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest by contesting the matter properly at the earlier stages. If this Court were to treat Section 35G of the Act as just another avenue of litigation by appeal, it would be defeating the very purpose of the restricted jurisdiction under Section 35G of the Act. The only pleading taken on behalf of the Appellant in its additional submission is that by inadvertence, the matter could not be contested properly before the Tribunal. In our considered opinion, whether it was inadvertence or not is itself a question of fact requiring inquiry and fixation of responsibility. We are constrained to say so because the present is not the first case of its kind that has come before us. It would have been appropriate for the Appellant to have first fixe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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