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TMI Blog2022 (8) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... . 75898/2017 respectively. Since common questions of law have been raised by the revenue in both the appeals and the order impugned in CEXA/58/2019 passed by the Tribunal having been followed by the Tribunal in its order which is impugned in CEXA/27/2021 we have heard the appeals together and they are disposed of by this common order. Mr. Dugar, learned Advocate appearing for the respondent/assessee raised a preliminary objection as regards the maintainability of the appeal in CEXA/58/2019. It is submitted that duty involved in the case is Rs.92,75,862/- and therefore, it being less than Rs.1 crore the appeal is not maintainable before this Court in the light of the circular issued by the CBEC. The learned standing Counsel appearing for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal is above the monetary limit. In our considered view, the correct interpretation to the circular would be as to whether the duty component exceeds the threshold limit or not, regardless of the fact it is with or without penalty. However, we need not go into the said controversy since there is no bar for this Court to consider an appeal when a substantial question of law arises for consideration. In this regard, the learned Standing Counsel has placed reliance on the decision in the case of Commissioner of Central Excise, Chennai-IV vs. Sundaram Fasteners Limited, 2014(304) E.L.T 7 (Mad.). In the said decision the Court held that quantum of demand should not be a going factor, more so, even when a substantial question of law is invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustified in heavily relying upon the decisions being F.O. No. 75683/2018 dated 22.03.2018 passed in the case of M/s. Sarva Mangalam Gajanan Steel Pvt. Ltd. - Versus - Commissioner of Central Excise, Bolpur While coming to its conclusion without any independent reasons and without appreciating that in the facts and circumstances of the instant case, the aforesaid decision is not applicable ? As noted above, the Tribunal in its order dated 22nd March, 2018 impugned in CEXA No.27 of 2021 followed its earlier order dated 22nd March, 2018 which is impugned in CEXA 58 of 2019. The Tribunal has recorded that it has heard the rival submissions and it is of the view that when a final product duty was paid and accepted by the department then the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority was that the assessee does not process furnace for melting such waste and scrap and it is practically impossible for the assessee to manufacture MS Flat/Bar, MS Angle, MS Channel, MS Round etc. from the said items which are various types of scraps. Further, the allegation is that it is not financially viable to manufacture MS Flat/Bars etc. from such type of raw material and therefore it was stated that the assessee has taken credit of duty on the said scrap which do not appear to be their inputs, appear to have wilfully and intentionally availed irregular CENVAT credit in contravention of the provisions of Rule 3 read with Rule 9 of the CENVAT Rules, 2004. The assessee had submitted a reply to the show cause notice contending th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are eligible inputs or not and that the assessee has never disclosed the description and uses of the items against which they have availed the CENVAT credit treating those as inputs until they were asked for on 9th March, 2015 by the concerned Range Officer. In paragraph 6.12 of the order of adjudication dated 13th February, 2017, the authority has held as follows :- "6.12 Now I come to the main allegation raised in the impugned show cause notice. I find that the allegation of the department is that the said Noticee had availed Cenvat credit on TMT Cutting. Square Cobble, MRM Rolls Spoils, Misrolls & End cutting, Scrap & Melting Scrap treating those as inputs used in the manufacture MS Flat / Bar, MS Channel, MS Round, MS Angle, MS Ribb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions can be applied and while applying the decision it has to be applied to the facts and circumstances of the case. On reading of the impugned order, we find there is no such factual finding recorded by the learned Tribunal, which is the last fact finding authority in the hierarchy of authorities. Further, the Tribunal has not gone into the classification issue which appears to be the sole issue arising in the facts of Jai Raj Ispat Ltd. In so far as the order impugned in CEXA 27 of 2021, the Tribunal has merely followed the other order and therefore, whatever reasons we have given above will equally apply to the said appeal. Thus, for the above reasons, we are of the view that the substantial questions of law does arise for considera ..... X X X X Extracts X X X X X X X X Extracts X X X X
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