Calcutta High Court
(Now Known As Cgst Bolpur ... vs M/S. Steel Authority Of India Ltd on 7 May, 2025
Author: T.S. Sivagnanam
Bench: T.S Sivagnanam
1
OD3
IN THE HIGH COURT AT CALCUTTA
SPECIAL JURISDICTION [CENTRAL EXCISE]
ORIGINAL SIDE
CEXA/36/2019
IA NO: GA/3/2025
COMMISSIONER OF CENTRAL EXCISE, BOLPUR
(NOW KNOWN AS CGST BOLPUR COMMISSIONERATE)
VS
M/S. STEEL AUTHORITY OF INDIA LTD.
BEFORE :
THE HON'BLE THE CHIEF JUSTICE T.S SIVAGNANAM
AND
HON'BLE JUSTICE CHAITALI CHATTERJEE (DAS)
DATE : MAY 7, 2025.
Mr. Kaushik Dey, Adv.
Mr. Abhradip Maity, Adv.
Ms. Shatabdi Sen, Adv.
...for Appellant
Mr. Shovit Betal, Adv.
...for Respondent
The Court :- This application has been filed to condone the delay in filing
the application for restoration and to restore the appeal which was dismissed
for non prosecution by order dated 28 th June, 2024.
We have perused the reasons given by the applicant for not being present
on the day when the matter was called. The reasons are acceptable and are not
being disputed by the assessee. Therefore, the delay in filing the application is
condoned and the appeal stands restored to its original file and number of this
Court to be heard and disposed of. The application, IA No: GA/3/2025, is
allowed.
CEXA/36/2019
The appeal is taken up for hearing by consent of the parties treating the
same as on the day's list.
This appeal has been preferred by the revenue under Section 35G of the
Central Excise Act, 1944 challenging the order passed by the Customs, Excise
and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata (Tribunal) in
Customs Appeal no.E/368/2010, dated 3 rd May, 2018. The appeal was
admitted on 27th January, 2022 on the following two substantial questions of
law :
"(1) Whether on the facts and in the circumstances of the case the
fixed facility charge claimed by the assessee as an input was admissible
under the CENVAT Credit Rules, 2004 ?
(2) Whether on the facts and in the circumstances of the case the
tribunal erred in allowing the said charge as claimed as an input by the
assessee ?"
We have elaborately heard the learned senior standing counsel appearing
for the appellant/revenue and the learned counsel appearing for the
respondent/assessee.
The assessee, Steel Authority of India Ltd., challenged the order passed
by the Commissioner of Central Excise, Bolpur dated 9 th March, 2010, by
which the authority demanded CENVAT credit of Rs.4,09,39,520/- including
Education cess and Secondary and Higher Education cess in terms of Rule
2014 of the CENVAT Credit Rules, 2004, read with Section 11A(2) of the
Central Excise Act, 1944. Penalty and interest was also levied. The appellant
challenged the said order before the learned Tribunal which appeal had been
allowed by the learned Tribunal, which is impugned in this appeal.
The facts which are necessary to be noted are that the
responden/assessee is a Public Sector Undertaking and entered into an
agreement with M/s. Goyel MG Gases (P) Ltd. during the period 2004-09. The
revenue was of the opinion that the duty paid on fixed facility charges cannot
be made available as CENVAT credit to the assessee as the said payment of
duty has no nexus with the manufacture of the finished goods by the assessee
in their factory premises and in this regard, the definition of "input" as defined
under Rule 2(k) of the CENVAT Credit Rules, 2004 was referred to. The learned
Tribunal took note of the fact that identical issue was considered in the
assessee's own case and by final order dated March 23, 2018, the claim of the
assessee with regard to CENVAT credit on the duty paid on fixed facility
charges was allowed. While doing so, the order passed by the co-ordinate
Bench of the Tribunal in the case of Commissioner of Excise, Hyderabad vs.
Aurobindo Pharma Ltd., [2010 (261) ELT 1066 (Tri.-Bangalore)] was relied on.
The revenue challenged the said order before this Court in CEXA 52/2019 and
the said appeal was dismissed by the Hon'ble Division Bench by judgment
dated February 24, 2020. Thus, the issue in the assessee's own case having
been decided, the revenue cannot take a different view in the matter though the
only distinction in the instant case is that the fixed facility charges is in respect
of the facility which was provided for supply of liquid oxygen whereas in the
other case it was liquid nitrogen. That apart, the clarification issued by the
Central Board of Excise and Customs dated November 10, 2014 also comes to
the aid and assistance of the assessee wherein it was clarified that in the
months back there is supply of gas, all elements of consideration, such as price
of gas at designated rate per unit of gas and FFC would be added to determine
the assessable value for payment of Central Excise Duty. Further, it was
clarified that where the gases so supplied are used by another assessee as
'inputs', admissibility of the duty paid on gases as reflected in the invoice for all
situations would be decided in accordance with the provisions of the CENVAT
Credit Rules, 2004. That apart, on facts it is not in dispute that the supplier
had paid the duty and the value of the gas which was supplied was also
included in the assessable value.
Therefore, we find that the learned Tribunal was fully right in allowing
the assessee's appeal. Accordingly, the appeal filed by the revenue is dismissed
and the substantial questions of law are answered against the revenue.
(T.S. SIVAGNANAM, CJ.)
(CHAITALI CHATTERJEE (DAS) , J.)
sm/SN.
