TMI Blog2020 (11) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the department cannot deny the credit availed after collecting the excise duty - demand do not sustain - appeal allowed - decided in favor of appellant. - Excise Appeal No. E/41810 of 2015-DB - Final Order No.40868/2020 - Dated:- 28-10-2020 - HON BLE MS SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND HON BLE SHRI P. ANJANI KUMAR, (MEMBER TECHNICAL) Shri Ragavan Ramabhadran, Learned Advocate, for the Appellant Shri Arul C. Durairaj, Supdt., Learned Departmental Representative for the Respondent ORDER PER: SULEKHA BEEVI C.S. i) The appellant is a manufacturer of steel products. They require gases such as oxygen, nitrogen and argon on a regular basis for use as inputs in their manufacturing process. For this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal and vide Final Order dated 22.12.2014, the matter was remanded. In re-adjudication, the Original Authority again confirmed denial of CENVAT Credit vide Order-in-Original dated 26.05.2015. Aggrieved by the said order, appellant is now before the Tribunal. 2.1 On behalf of the appellant, Learned Counsel Shri Raghavan Ramabhadran, appeared and argued the matter. It is submitted by him that the issue is settled in favour of the appellant by the Hon ble High Court of Madras, in the case of Inox Air Products Pvt. Ltd., Vs. UOI 2020 (38) GSTL 158 (Mad.). In the said case, INOX had filed a writ of mandamus before thee Hon ble High Court of Madras seeking a direction against the department to comply with the CBEC Instruction F.No. 06/03/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CBEC Instruction stating that Excise Duty is leviable on MTOP charges and FFC (page-187 of the appeal book) 7 22.12.2014 Order of this Hon ble Tribunal in the case of the appellant and INOX remanding the issue to decide the same in line with the CBEC Instruction (page-40 of the paper book) 8 26.05.2015 Orders passed in case of the appellant denying the Cenvat credit and INOX ordering recovery of refund. This Order is the subject matter of this appeal (Page-31 and page 199 of the appeal book) 2.2 It is submitted by the learned Counsel that the appellant who purchases oxygen from INOX stopped m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d respondent had therefore started deducting the amounts against for these payments against supplies made. 5. The petitioner had also approached an arbitrator to decide the issue as to whether the 3rd respondent was justified deducting the aforesaid amount from the payments/invoices against the supplies made by the petitioner. It is submitted that the arbitrator has recently passed an award on 7-11-2019 against the petitioner which the petitioner proposes to challenging under Section 34 of the Arbitration and Conciliation Act, 1996. 6. Petitioner further submits that excise duty paid by the petitioner on the Fixed Facility Charges (FFC) and Minimum Take or Pay Charges (MTOP) were also refunded pursuant to Order an Appeal No. 66/2013 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , dated 26-5-2015, the Cenvat credit availed by the 3rd respondent was also directed to be reversed. 10. Both the petitioner and the 3rd respondent have filed their respective appeals before the Customs, Excise and Service Tax Appellate Tribunal and as on the date of this order both the appeal is pending final hearing before the said Tribunal. 11. In the present writ petitions, the petitioner has prayed for the direction to the 1st respondent to ensure that the field formation to comply with the clarification of the Central Board of Excise and Customs dated 10-11-2014 bearing reference F. No. 6/03/2013-CX.1 and ensure that for the purpose of valuation, Excise duties was required to be paid by the petitioner on the Minimum Take or Pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued by the Central Board of Excise and Customs particularly in the light of the fact that the clarification has been given pursuant to directions of the Bombay High Court. 15. Even otherwise, if the Minimum Take or Pay Charges (MTOP charges) and the proportionate Fixed Facility Charges (FFC) were built into the transaction value of the gases supplied by the petitioner to the 3rd respondent on which Excise duty was paid by the petitioner, the 1st, 2nd and the 4th respondent are bound to allow the 3rd respondent to avail Cenvat credit under the provisions of the Cenvat Credit Rules, 2004 to the 3rd respondent or to any other person with whom the petitioner has similar transactions. 16. This writ petition was filed prior to the substitut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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