2010 (6) TMI 100

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....the Tribunal has the power to dispose an appeal, which does not fall within the discretionary power conferred by the second proviso to sub-section (1) of Section 35B of the Central Excise Act, 1944, without passing a reasoned order on merits, especially in view of the Hon'ble Supreme Court's observation in the case of Standard Radiators Pvt. Ltd. reported in 2002 (143) E.L.T. 24 (S.C.) and Unimac India Ltd. reported in 2006 (198) E.L.T. 488 (S.C.) that the Tribunal is the final court of fact. 2. Whether credit of duty availed on the inputs used in generation of electricity to the extent to which it has been wheeled out the TNEB grid and hence not utilised in the manufacturing process, is recoverable in view of the Supreme Court judgment ....

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..... 4. Admittedly, in the present case on hand, the first authority has con firmed the demand for Rs. 55,611/- with penalty for a further amount of Rs. 55,611/-. Challenging the same, the assessee filed an appeal and being aggrieved by the order passed by the Appellate Authority, the appellant has preferred a further appeal to the Tribunal. 5. In order to appreciate the contention of the learned counsel for the appellant, second proviso to sub-section 1 of Section 35B is extracted hereunder: "Provided further that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where (i) in any disputed case, other than a case where the determinat....

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....he Tribunal is duty bound to decide the appeal on merits and when no discretion lies with the Tribunal to refuse to entertain an appeal on merits, then the said order is one without jurisdiction or authority on the part of the Tribunal. 7. In the present case on hand, as aforesaid earlier, the Tribunal has entertained the appeal, which admittedly involves more than Rs. 50,000/- falling on account of difference in duty and on account of penalty and therefore, the Tribunal have no other option except to decide the appeal on merits. 8. In this connection, it is useful to refer to the judgment of the Apex Court in Standard Radiators Pvt. Ltd. v. Commissioner of Central Excise [2002 (143) E.L.T. 24 (S.C.)], wherein the Supreme Court has ob....