COMMISSIONER OF CENTRAL EXCISE Vs. MODI SALES

JUDGEMENT

(1.) THIS appeal filed under Section 35G of the Central Excise Act, 1944 (for brevity, 'the Act') challenges order dated 14 -7 -2008 (P -3) passed by the Customs, Excise and Services Tax Appellate Tribunal, New Delhi (for brevity, 'the Tribunal') [ : 2009 (235) E.L.T. 356 (T)].

(2.) AT the outset Mr. Jagmohan Bansal, learned Counsel for the dealer -respondent states that the issue raised in the instant appeal stands concluded by a Division Bench judgment of this Court rendered in the case of Commissioner of Central Excise Commissionerate, Jalandhar v. Kapson Industries Ltd., Jalandhar (CEA No. 87 of 2008, decided on 28 -11 -2008). The Division Bench of this Court has held that simultaneous manufacture of dutiable and exempted goods out of the common modvatted/cenvatted inputs is the first and foremost condition for demanding the amount for the contraventions of Rule 57CC and Rule 57AD of the erstwhile Central Excise Rules, 1944 (for brevity, 'the 1944 Rules') or Rule 6 of the Cenvat Credit Rules. 2001/2002 (for brevity, '2001/2002 Rules'). It is on the satisfaction of the aforesaid condition such an amount could be demanded or recovered from the dealer -respondent.

(3.) THE aforesaid proposition has not been seriously disputed nor controverted by the learned Counsel for the appellant.