9911796707
TMI Blog2022 (6) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... is so, we permit the learned senior counsel to approach the Tribunal by filing a Review Petition before it. 3. If such a Review Petition is filed within a month's time from today, we request the tribunal to decide those two abovementioned issue on merits, without reference to the period of limitation. 4. The Civil Appeal are disposed of accordingly." 2. In terms of the above order of Hon'ble Supreme Court, review petition by way of Misc. Application was filed on 19.10.2015 by the applicant/appellant. 3. Learned Shri Chandan Kumar, General Manager (Finance) appearing for the applicant submit that the issue of eligibility of Notification No. 29/89-C.E. flows from reply to show cause notices and same also been specifically dealt with by the Ld. Commissioner is order. A specific ground with regard to the eligibility of Notification No. 29/89 -C.E. has been taken in the statement of facts in the both the appeals filed before the tribunal. Therefore, it would not be correct to contend that the issue of Notification No. 29/89 is sought to be raised first time. 4. Without prejudice, he also submits that Section 35C of the Central Excise Act, 1944 provides that Appellate Tribunal ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on would be available only if kerosene is supplied for the purpose of manufacture of Liner Alkyl Benzene or Heavy Alkylate which is obviously for industrial purpose. Therefore, the ratio of the Supreme court judgment in the context of notification 5/98 cannot be applied in the context of claim for exemption notification number 29/89. 8. He also submits that since the products (LABFS and LARO) though classifiable as 'Kerosene' under CETH 2710 were not sold through PDS but supplied for the purpose of manufacture of Liner Alkyl Benzene or Heavy Alkylate same would be eligible for exemption Notification No. 29/89. 9. As regard the imposition of penalty under Rule 173Q(1)(a) of Central Excise Rules, 1944 he submits that it is undisputed facts that classification List were filed, proper invoices were issued, records were kept and returns were submitted disclosing the products LABFS and LARO under Tariff head 2710.20 and not 2710.99 and theses were all within the knowledge of the department. Therefore, the basis of imposition of penalty is illegal. 10. He also submits that issue well settled that when the issue involved is classification dispute or interpretation of Notification, penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulted for not deciding the said issue, when the issue was not raised before them. To this extent, the statement made before the Apex court by the Senior advocate was misleading and erroneous. 14. He further submits that the issue being totally new cannot be raised or consider after the passing of the final order since it would amount to a review of the said final order. 15. As regard the second issue relates to the imposition of penalty under Rule 173-Q of Central Excise Rule 1944 he submits that, there is no specific plea in the appeal memorandum seeking annulment or modification of the penalty imposed on the appellant though invoking of longer period of limitation as far as the duty demand is concerned has been contested. This tantamounts to not pressing the aspect of penalty and interest. 16. He also submits that in the written submission field on behalf of IOCL at the time of the hearing held by the Hon'ble Tribunal, there is no mention or plea about the 'penalty' issue. The Hon'ble tribunal has rightly taken that the Appellant IOCL had pressed only two points, namely, the classification of LABFS and LARO and their eligibility to the duty exemption under Notification No. 79/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same may be rejected. 21. Heard both sides and perused the records. We find that in the present review application is filed by the applicant on the basis of Hon'ble Supreme Court order dtd. 21.09.2015 and the Hon'ble apex court vide order in para 3 also held that "if such review petition is filed within a month's time from today, we request the Tribunal to decide those two abovementioned issues on merits, without reference to the period of limitation." We also noticed that as per the provision of the Central Excise Act, Tribunal has no power to review the order. However, it is well settled law that all subordinate courts/tribunals/authorities were bound by the decision of the Apex Court until it was reviewed or corrected by the same court. The decisions rendered by the Apex Court being the highest judicial fora are binding on all subordinate courts. However, this apex court order can also be considered as remand for deciding the issue on merit. Considering the said facts, we now decide the issues on merits related to applicability of Notification No. 29/89-CE dtd. 01.03.1989 and legality of penalty of Rs. 36,00,000/- under Rule 173-Q of the Central Excise Rules, 1994 addressed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture of linear alkyl benzene or heavy alkylate will be eligible for exemption under above Notification. Since the said factual position, related to conditions of notification cannot be ascertain at this stage specifically when the said issue was raised before the Tribunal first time. In the above position of the case, we are of the view that now adjudicating authority must decide and verify the matter first whether products of applicant can be considered as "Kerosene" for the purpose of above exemption notification and thereafter, verify the use of products for manufacture of liner alkyl benzene / heavy alkylate. As per our above observations, we dispose of the first issue by way of remand to the adjudicating authority for passing a fresh order in the above terms. 25. Adjudicating authority should complete the remand proceedings within three months of the receipt of this order and the applicant shall be allowed adequate opportunity of hearing and submission before a fresh decision is taken. 26. As far as imposition of penalty is concerned, we find that it is a settled legal position that in cases where issue involved is the classification dispute and interpretation of rules / ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
