Commissioner of Cus. and C. Ex. vs Colfax Lab. (I) (P) Ltd.

The Commissioner of Customs and Central Excise has filed these two appeals challenging the judgment and order dated 21-6-2011 passed by CESTAT, West Zonal Bench, Mumbai [2011 (273) E.L.T. 528 (Tri.-Mum.)]. Both these appeals can be disposed of by a common judgment since they involve similar questions of law and facts and the parties are the same. Brief facts which are required to decide both these appeals are as under:

The respondent herein filed a refund claim of Rs. 5,00,000/- on the ground that on 7-9-2001, an inquiry was made by a team from the Directorate of Central Excise Intelligence (West Zone), Mumbai, and they visited the factory and took inspection of "Denatured Alcohol". Thereafter, they recorded a statement of their officer. The respondent paid Rs. 5,00,000/- under protest. Thereafter, on 10-4-2002, a show cause notice was issued on the assessee that the sum of Rs. 5,00,000/- was correctly collected as excise duty on Denatured alcohol and no documentary evidence was produced that the said amount was wrongly recovered from the respondent.

A reply was filed by the respondent dated 30-4-2002 and it was stated in the reply that the Denatured alcohol was used as a raw material for the manufacture of finished products and that Ethyl Alcohol was denatured by addition of a small quantity of DEP (Diethyl Pathalate). It was contended in the reply that the said process was required to be followed as a statutory obligation under the provisions of Medicinal and Toilet Preparations Act, 1955 and rules framed thereunder.

In respect of Excise Appeal No. 1/2012, demand of Rs. 18,41,377/- in total was made. The Excise authority in both the cases rejected the reference claim of the assessee. In Excise Appeal No. 1/2012, the order was passed dated 8-5-2002 and in Excise Appeal No. 2/2012, the order was passed dated 22-11-2002. Both the appeals were challenged by filing an appeal before the Commissioner (Appeals). Against the said two orders, the Revenue preferred appeals. The appeals were disposed of by judgment and order dated 21-6-2011 in both the cases. The tribunal by its judgment and order while considering the issue as to whether the extended period of time would be invoked in the said two cases, came to the conclusion that there was a failure on the part of the Revenue to declare that they were adding DEP in duty paid procured ENA and it could not be held to be suppression, since it was a well known fact and that the excise authorities were under the obligation to know the said fact and, therefore, CESTAT held that the extended period of time could not have been invoked in the instant case by the Department. The case was therefore remanded to the original adjudicating authority to quantify the demand for the normal period of limitation i.e. within a period of one year from the relevant date. Being aggrieved by the said part of the order of the CESTAT that the present appeals have been filed.

Since the finding of CESTAT that the respondent was adding DEP in duty paid procured ENA which was within the knowledge of the Excise is a finding of fact, leave was sought by the appellant to amend the said Excise appeals. Despite several adjournments being given the said amendment could not be carried out since the relevant files could not be traced. Since the relevant material could not be produced on record, it is now not open for the appellant to challenge the finding of fact recorded by the CESTAT and as such, in our view, therefore, there is no substantial question of law involved in both the appeals and hence, both the appeals are dismissed.