2000 (9) TMI 827

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....re of fertilizer otherwise than as feed stock. 2. A portion of the Furnace Oil obtained at 'Nil' rate of duty was used during the shut down period from 5/90 to 5/94 for producing steam and electricity which was further used in running the equipments like turbines, generating sets, compressors, pumps, etc. On this quantity duty at the rate of Rs. 75/- per K.L was paid. 3. A show cause notice dated 28-6-1995 was issued to the appellants under Section 11A of the Central Excise Act read with rule 196(1) of the Central Excise Rules, 1944 demanding duty of Rs. 10,67,785.56 i.e. at Tariff Rate on the quantity of Furnace Oil used during the shut down period from 5/90 to 5/94 invoking the provisions of five years limitation and propo....

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....so used would be covered within the category of intended use for the manufacture of fertilizers and accordingly, they paid duty at said concessional rate. They placed reliance in this regard on following judgments :- (i) 1996 (88) E.L.T. 314 (SC) Steel Authority of India v. Collector of Central Excise (ii) 1996 (86) E.L.T. 177 (S.C.) = 1996 RLT 498 (15) (SC) Indian Farmers Fertilizer Co-operative Ltd. v. Collector of Central Excise, Ahmedabad (iii) CEGAT's Order No. 673/96-C, dated 17-10-1996 in Appeal No. E/2387/92-C [1996 (88) E.L.T. 704 (Tribunal)] National Fertilizer Ltd. v. CCE, Chandigarh. (iv) 1985 (19) E.L.T. 617 (Tri.) Neyveli Lignite Corp. Ltd. v. CCE, Madras (v) CE....

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....ve." 5. Heard both sides. We have considered the submissions and the material on record and after considering the same we find :- (a)     The demand made under rule 9(2) read with proviso to Section 11A(1) as made in this case cannot be ordered in the present case, since demands under rule 9(2) can only be made on contravention of rule 9(1) on removal of the said goods could be said to have taken place. Rule 9(1) provides that no excisable goods shall be removed from any place where they are produced, cleared or manufactured or any premises appurtenant thereto which may be specified by the Commissioner in this behalf, whether for consumption, export or manufacture of any other commodity in or outside such plac....