PRINCIPAL COMMISSIONER Vs. TATA CHEMICALS LTD.

JUDGEMENT

(1.) By this appeal under Sec. 35G of the Central Excise Act, 1944 (hereinafter referred to as "the Act"), the appellant revenue has called in question the order dated 10th April, 2015 passed by the Central Excise and Service Tax Appellate Tribunal (hereinafter referred to as "the Tribunal") by proposing the following question stated to be a substantial question of law: - -

(2.) Mr. Y.N. Ravani, learned senior standing counsel for the appellant assailed the impugned order by placing reliance upon the findings recorded by the adjudicating authority whereby the adjudicating authority, on an interpretation of sub -rule (2) of rule 57Q of the Rules as amended by the notification dated 16th March, 1995, observed that credit of duty paid on capital goods was allowable under rule 57Q of the erstwhile Rules and even after amendment from 16th March, 1995, credit on duty paid on capital goods continued to be governed by the provisions of rule 57Q only. That the wordings of the amended sub -rule (2) clearly provided that credit in respect of specified item of capital goods given in clause (d) of Explanation/was allowable only if such credit was allowable under any other rule or notification prior to 16th March, 1995. According to the adjudicating authority, the unamended rule 57Q could not be considered to be "any other rule" and hence, the assessee's contention in this regard could not be accepted. Reference was made to the findings recorded by the Commissioner (Appeals) whereby he had, in relation to the question with regard to the burden of proving functionality of three items, held that after having acknowledged the declaration filed by the assessee, the burden of proof lies on the shoulder of the Department to disprove the functionality of the items under the category of 'Capital Goods' which was never done. In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of CCE v/s. Jawahar Mills Ltd., 2001 taxmann.com 1719. It was, accordingly, urged that the appeal deserves to be admitted on the question as proposed or as may be formulated by the court.

(3.) This court has considered the submissions advanced by the learned counsel for the appellant and has perused the impugned order passed by the Tribunal as well as the orders passed by the adjudicating authority and the Commissioner (Appeals). A perusal of the impugned order reveals that the Tri has mainly reaffirmed the findings recorded by the Commissioner (Appeals) and hence, it would be necessary to refer to the findings recorded by the Commissioner (Appeals).