2011 (2) TMI 641

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....he period from January, 1996 to August, 1996, the excise duty amount of Rs.2,43,37,186/- on 3139 numbers of transmission assemblies captively used in the manufacture of exempted tractors, as confirmed by the Tribunal in Final order dated 27.5.2004, is recoverable from the assessee and modvat credit of Rs.1,71,55,294/- pertaining to the inputs used in the transmission assembly captively used in the manufacture of exempted tractors which is already reversed by the appellants was available to them. It has been further held that for the period September, 1996 to May, 1998, the appellants are liable to pay Central Excise duty amounting to Rs.7,22,64,905/- on 8501 numbers of transmission assemblies captively used in the manufacture of exempted tr....

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....e exempted from payment of duty was corrected to be read as they are eligible to take credit of duty paid on the impugned transaction assemblies whether used in the manufacture of dutiable tractors or tractors exempted from payment of duty subject to fulfilment of the procedure prescribed in Rule 57CC of the Central Excise Rules, 1944.   5. The impugned order discloses a clear observation by the Commissioner that the Tribunal had held that the appellants were eligible to take that credit of the duty paid on the impugned transmission assembly whether used in the manufacture of dutiable tractors or tractors exempted from duty; that the impugned order further records that there is reference application filed by the department before the ....

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.... the matter rectified is also incorrect. Section 35E confers adequate powers on the department in this regard. Under sub-section (1), where the Central Board of Excise and Customs [Direct Taxes] comes across any order passed by the Collector of Central Excise with the legality or propriety of which it is not satisfied, it can direct the Collector to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order. Under sub-section (2) the Collector of Central Excise, when he comes across any order passed by an authority subordinate to him, if not satisfied with its legality or propriety, may direct such authority to apply to the Collector (Appeals) for t....

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....et aside while expressing our displeasure for the Commissioner having acted contrary to the order of the Tribunal.   9. It is also to be noted that as rightly pointed out by the learned advocate for the appellants the Hon ble High Court has also rejected the reference under order dated 30.3.10 reported in 2010 378-HC-P&H-CX.   10. Learned Advocate for the appellants is also justified in making grievance about non-consideration of the certain material available on record and which could support the case of the appellants and which was collected by the Department itself. If that is the case, certainly it is unfair on the part of the Commissioner to ignore the same and not to furnish copies thereof to the appellants before deciding....