COMMISSIONER OF CENTRAL EXCISE Vs. CHUNAR CEMENT FACTORY

JUDGEMENT

(1.) We have heard Shri R.C. Shukla, learned counsel appearing for the Central Excise department. Shri M.P. Devnath and Shri Nishant Mishra appear for the respondent - assessee. This appeal, under Section 35-G of Central Excise Act, 1944 arising out of an order passed by the Customs, Excise & Service Tax Appellate Tribunal dated 5-3-2013 in Central Excise Appeal No. 55419/2013-Ex, is reported to be beyond time of 23 days. An application has been filed by the department to condone the delay.

(2.) Shri M.P. Devnath, appearing for the respondent - company does not have any objection to the condonation of delay. The application is accordingly allowed. The delay in filing the appeal is condoned. The appeal will be given regular number.

(3.) We have heard learned counsels appearing for the parties, and do not find that any of the substantial questions of law as framed for consideration of this Court arises for consideration of the Court. The CESTAT, after recording the findings, that applying 5% formula to the sale value, the duty demand of Rs. 1,38,34,565/- has arisen, found that when it came to the notice of the appellant that proportionate input and input credit attributable to generation of power which was sold shall not be entitled to Cenvat credit, it reversed the Cenvat credit quantum availed in that respect. The Tribunal found that the dispute was thus reduced only to the extent, as to whether the Cenvat credit in such case could be reversed. Allowing the stay application the Tribunal remanded the matter back to the Adjudicating Authority to examine the aspects referred to in paras 3,4 and 5 quoted as below:--