TMI Blog2016 (1) TMI 1426X X X X Extracts X X X X X X X X Extracts X X X X ..... e manufactured RFO and cleared the same issuing any excisable invoice for marketing. Appeal disposed off by way of remand. - E/459/2005 - - - Dated:- 18-1-2016 - SHRI D.N. PANDA, JUDICIAL MEMBER AND SHRI R. PERIASAMI, TECHNICAL MEMBER For the Petitioner : Ms. Indira Sisupal, AC (AR) For the Respondent : Shri Raghavan Ramabadran, Adv., ORDER PER: D.N. PANDA Revenue is on the limited point against the order of the ld. Commissioner (Appeals) contending that when there is record based evidence available, that authority should not have adopted the mathematical formula of 8:13 to determine the usage of Residual Fuel Oil (RFO) in generation of Power for dutiability. 2. Perusal of the order of the ld. Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the respondent is not entitled to the exemption benefit granted by the aforesaid notification, since LSHS (RFO) is dutiable following Apex Court decision in CCE, Chennai Vs. Chennai Petroleum corporation Ltd. - 2007 (211) ELT 193 (S.C.). Against such demand of duty, respondent assesse went to Commissioner (Appeals) and that Authority rejected the appeal of appellant for which it came before the Tribunal. But that was dismissed on the technical ground that the respondent was not permitted by the Committee on Dispute to seek redressal against the appellate order. Therefore, the matter ended there. 4. Respondent further says that RFO is not same as LSHS. RFO is not marketable and also there was no clearance made issuing any excisable i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (supra), there is no question of levy of duty on RFO at all. Respondent relies on the decision in the case of Hindustan Petroleum Corporation Ltd. Vs. UOI - 1999 (112) ELT 8 (S.C.) to submit that the question of marketability is necessary to bring the goods to the fold of levy of duty. The burden of proving marketability is on the Revenue. But Revenue has failed to discharge the same. Therefore, Revenue cannot make allegation that RFO is dutiable being equal to LSHS which is not correct. Respondent further relies on the decision in the case of Hindustan Zinc Ltd. Vs. CCE, Jaipur - 2005 (181) ELT 170 (S.C.) to submit that the view of the Apex Court in the judgment in Hindustan Petroleum Corporation Ltd. (supra) was reiterated in Hindustan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower partly sold to TNEB.. 9. We clarify that while the judgment Apex Court in Chennai Petroleum Corporation Ltd., (supra) was rendered, it appears that both sides were under the notion that RFO is dutiable. But there was no question before Apex Court whether RFO was manufactured adopting any process and is really dutiable, applying the twin test as has been laid down by the Apex Court in the case of Board of Trustee s case (supra). Therefore, decision in Chennai Petroleum Corporation Ltd., (supra) is precedent on the fact that was before the Apex Court. The authority should not be confused with the decision of Chennai Petroleum Corporation Ltd., (supra) the decision of Board of Trustees (supra), Hindustan Petroleum Corporation Ltd., and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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