TMI Blog2017 (6) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... and, in our opinion, quite correctly so, as on jurisdiction, it came to a conclusion that the SCN, based on which proceeding against IOCL had been triggered, was not viable in law. There could be no acquiescence, where, the issue involved pertains to jurisdiction. Appeal dismissed - decided against appellant. - Civil Miscellaneous Appeal No. 2157 of 2016 - - - Dated:- 7-4-2017 - Rajiv Shakdher And R. Suresh Kumar, JJ. For Appellant : Mr.A.P.Srinivas For Respondents : Mr.N.Venkataraman, M/s.S.Muthu Venkataraman for R1 ORDER ( Judgement of the Court was delivered by Rajiv Shakdher, J. ) 1. This is an appeal preferred by the Revenue against the judgement and order dated 02.11.2015, passed by the Customs, Excise and Service Tax Appllate Tribunal (in short 'the Tribunal'). 2. In order to adjudicate upon the appeal, the following brief facts are required to be noticed : 2.1. The first respondent herein, i.e., Indian Oil Corporation Limited (in short 'IOCL') is engaged in the business of manufacturing lubricating oils falling under Chapter 27 and 34 of the Central Excise Tax Act, 1985 (in short 'CETA'). It appears that IOCL fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CL's stand that the subject products were lubricating oil/grease was rejected. The Adjudicating Authority held that the subject products were lubricating preparations , and hence, the benefit of exemption, under the 1989 Notification was not available to IOCL. 3.2. IOCL, being aggrieved, carried the matter further, in appeal, to the Commissioner. The Commissioner, once again, set aside the order of the Adjudicating Authority and remanded the matter. The Commissioner, inter alia, directed the Adjudicating Authority to re-examine the entire issue, after obtaining the opinion of the concerned technical experts or, the Chief Chemical Examiner, Delhi. 3.3. It appears that before the Commissioner, an issue was raised by IOCL that the mineral content of the subject products had not been ascertained by the Chemical Examiner. 3.4. Upon the remand, directions issued were complied with, and the matter received the attention of the Adjudicating Authority for the third time, when, an order dated 31.10.2005 was passed. 3.5. The Adjudicating Authority, this time around, noted that the Chief Chemical Examiner had opined that there was no standard method available for ascertaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : BED : ₹ 1,01,63,654 SED : ₹ 15,24,549 _____________ Rs.1,16,88,203 4. Since, IOCL continued to remain aggrieved, it preferred an appeal, for the third time, before the Commissioner. The record shows that the Revenue also filed an appeal against the Order-in-Original dated 31.10.2005. 4.1. The Commissioner disposed of both the appeals via a common order dated 31.07.2007. The Commissioner, by this order, allowed the appeal of the Revenue and rejected the appeal preferred by IOCL. The net effect was that the duty liability (BED+SED) of IOCL was enhanced to a sum equivalent to ₹ 1,25,90,015/-, as against what was provided in the Order-in-Original, which was equivalent to a sum of ₹ 1,16,88,203/-. Furthermore, IOCL was directed to pay the aforementioned amount along with appropriate interest. 4.2. It is for this reason, IOCL had preferred the statutory appeal with the Tribunal. 4.3. The Tribunal, vide the impugned judgement and order, allowed the appeal of IOCL. The short ground, on which, the Tribunal allowed the appeal was that the SCN was vague; it did not indicate the sub headings under which the subject goods had to be classifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 1992, which is the date of the SCN. 6.1. Learned Senior Counsel submitted that given the facts obtaining in the case, and the decision rendered by the Tribunal, no question of law arises for consideration of this Court. According to the learned Senior Counsel, the Tribunal had, in its decision, adverted to undisputed facts, and simply applied the law, which had been laid down by the Supreme Court in the matter of : Metal Forgings V. Union of India, 2002 (146) ELT 241 (SC), and thus, the matter did not require any interference by this Court. 6.2. In a nutshell, Mr.Venkataraman, submitted that the appeal had no merit and ought to be dismissed at this stage itself. 7. We have heard the learned counsel for the parties and perused the record. 8. Upon perusal of the record, what clearly emerges is as follows : (i).The SCN dated December 1992, was served, admittedly, on IOCL. (ii).The SCN took objection to the classification of the subject products by IOCL. (iii).The SCN did not indicate as the sub-heading, under which, the subject products ought to have been classified. (iv).The SCN did not indicate the period, for which, duty was being demanded. (v) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions made in the order of the Commissioner dated 31.07.2007 : ...... The claim that there was no specific proposal in the SCN for recovery of duty is baseless since denial of exemptions, would suo-motu, imply obligation to pay the duty not paid by such wrong availment of exemptions. In view of the same, there is no merit in the respondent/appellant's appeal that demand was not sustainable in the absence of specific proposal in the SCN for such demand. The same is liable to be disallowed. ..... 13. Therefore, there was no reason for the Tribunal not to entertain the objection and decide the matter, accordingly, since, the very basis and the foundation of the entire proceedings initiated by the Revenue was in jeopardy. It is, in these circumstances, that the Tribunal did not proceed to adjudicate upon the merits of the matter and, in our opinion, quite correctly so, as on jurisdiction, it came to a conclusion that the SCN, based on which proceeding against IOCL had been triggered, was not viable in law. 14. We may also indicate, as noticed above, that it was suggested by Mr.Srinivas, though, rather feebly, that this was a case of acquiescence. According to us, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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