The Commissioner of Central Excise Customs and Service Tax vs Jindal Praxair Oxygen Co. Pvt. Ltd.

Ravi V. Malimath, J.

The Superintendent of Central Excise on visit to the respondent''s unit noticed that the assessee had wrongly availed the CENVAT Credit on imported capital goods based on a reconstructed bills of entry. A show cause notice was issued seeking recovery under the Central Excise Act and Rules. On a reply being filed and considered, the Additional Commissioner of Central Excise and Customs confirmed the demand and imposed a penalty. The respondent filed an appeal before the Commissioner(Appeals) which was dismissed. Aggrieved by the same, he approached the CESTAT. The appeal was allowed and the demand was set aside. Hence, the revenue has filed the present appeal.

By order dated 25/02/2011, the appeal was admitted to consider the following substantial questions of law:

"a) Whether the CESTAT is correct in coming to a conclusion that the CENVAT scheme is applicable in the present case.

b) Whether it was correct for the Tribunal to grant CENVAT credit in spite of the explicit legal provisions contained in Rule 57Q(3) of the Central Excise Rules, 1944.

c) Whether the Tribunal was right in distinguishing the case on its facts and not on the merits or the principles followed."

Learned counsel for the appellant contends that the matter is squarely covered by the order of the Division Bench of this Court dated 8th September 2011 passed in CEA 92/2007.

Counsel for the respondent is absent.

We have considered the said judgment. Therein, the appeal was considered on two substantial questions of law as framed by their Lordships as follows:

"(1) Whether the Tribunal is right in granting CENVAT credit in spite of the explicit legal provisions contained in Rule 57Q(3) of the Central Excise Rules, 1944, and

(2) Whether the Tribunal is right in setting aside the levy of penalty on the debt payable upon the capital goods?"

The questions of law as framed in the earlier judgment are identical to the questions of law that have been framed in the present appeal. In terms thereof, the Division Bench answered the substantial questions of law in favour of the revenue and against the assessee. It is submitted at the bar, that aggrieved by the said order, the assessee has taken up the matter before the Hon''ble Supreme Court in Special Leave Petition (Civil) No. 13203/2012 and the matter is pending adjudication.

In these circumstances, we find it appropriate that the present appeal be disposed off in terms of the earlier judgment of this Court as referred to herein above, since the questions of law that arise for consideration in this appeal have already been answered by the Division Bench of this Court. Since the same are pending adjudication before the Hon''ble Supreme Court, it is needless to state that any order that is to be passed by the Hon''ble Supreme Court would be applicable to the parties herein.

Consequently, the appeal is allowed. The substantial questions of law are answered in favour of the revenue and against the assessee in terms of the order dated 8th September 2011 passed in CEA No. 92/2007 in the case of The Union of India, Belgaum v. M/s. Jindal Praxair Oxygen Company Limited, Bellary district, Karnataka subject to the final outcome of SLP(Civil) 13203/2012. The decision to be rendered by the Ho''nble Supreme Court would be binding on the parties herein.

Appeal disposed off accordingly.