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Judgment
Harsha Devani, J.—In this appeal u/s 35G of the Central Excise Act, 1944, (the Act), the Appellant-Assessee has challenged order dated 5th February, 2009 2011 (264) ELT 223 passed by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) by proposing the following two questions:
(1) Whether on the facts and in the circumstances of the case, the CESTAT was right in rejecting the appeal on merits by denying the credit on LDO used as fuel for generation of steam part of which was cleared to the sister concern for use in the manufacture of dutiable final products?
Whether in the facts and the circumstances of the case, use of steam in sister concern situated in the same premises should be treated as ''steam used within the factory of production'' in view of the settled legal position that different plants manufacturing different excisable goods in the same premises would constitute one factory and their separate registration would not mean they are different factories?
As can be seen from the impugned order of the Tribunal, before the Tribunal, the Assessee had conceded that an identical issue had been considered by the Tribunal in the case of M/s. Mafatlal Industries vide order dated 26-11-08 [2009 (245) E.L.T. 265 (Tribunal)] and by taking note of the judgment of the Supreme Court in the case of Collector of Central Excise Vs. Solaris Chemtech Limited and Others, as also the Tribunal''s decision in the case of M/s. Reliance Industries, had denied the benefit. However, the Tribunal had held that the demand raised after the normal period of 6 months was barred by limitation. The learned advocate had accordingly, prayed for the same treatment and had submitted that part of the order may be within limitation.
Thus, in the light of the request made by the learned advocate for the Appellant the Tribunal has decided the appeal of the Assessee only on the question of invocation of the larger period of limitation. Once the Appellant has not contested the matter on merits before the Tribunal, needless to state that it is not open for the Appellant to raise the same before this Court. As regards the merits of the case, the Tribunal not having gone into the same in the light of the concession made by the learned advocate for the Appellant, the questions proposed do not arise out of the impugned order of the Tribunal.
In the absence of any question of law, the appeal is dismissed.