2006 (8) TMI 8

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....ed to avail of the benefit granted under serial No. 34 of exemption Notification No. 75/84-C.E., dated 1-3-1984 (as amended) issued by the Central Government. Period for which exemption is sought in these appeals falls between 1-8-1989 to31-5-1991. 2. Civil Appeal Nos. 9919-9929 of 2003 have been filed by the Commissioner of Central Excise, Vadodara against the final order passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (for short 'the Tribunal') in Appeal Nos. E/254-57, 282-83, 320, 2091/98-C, E/2752/00-C, E/274/00-C & E/410/00-C wherein and whereby the Tribunal has granted the benefit of Notification No. 67/95 which was operative between 16-3-1995 to 31-7-1996, Notification No. 8/96 operative for the period....

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.... notification is not fulfilled since fuel captively consumed was for production of electrical energy not for sale but for their own consumption or for supply to their non-undertaking for which there is no execution of duty to such fuel use for generation of electricity. 6. Assessee on 24-4-1990 submitted its reply stating, inter alia, that LSHS used for generation of electricity in the Thermal Power Station situated within the refinery is eligible for exemption in terms of the Notification No. 75/84 since the electricity is supplied to the various agencies on no profit no loss basis. 7. The Tribunal in the impugned order in Civil Appeal Nos. 7450-7451 of 2000 denied the benefit by observing that the Thermal Power Station of the assessee w....

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....this Court in Union of India & Others v. Kaumudini Narayan  Dalal & Another reported in 2001 (10) SCC 231; Colketor of Central Excise, Pune v. Tata Engineering & Locomotives Co. Ltd. reported in 2003 (158) E.L.T. 130 (S.C.); Birla Corporation Ltd. v. Commissioner of Central Excise reported in 2005 (186) E.L.T. 266 (S.C.); and Jayaswals Neco Ltd. v. Commissioner of Central Excise, Nagpur reported in 2006 (195) E.L.T. 142 (S.C.) wherein it has been held that if no appeal is filed against an earlier order or the earlier appeal involving the identical issue was not pressed by the revenue, the revenue is not entitled to press the other appeals involving the same question. In Birla Corporation Ltd. (supra), this Court observed as follows: "....

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....bsp;                    Intended use/Condition No.      goods                            duty ______________________________________________________________________________________________ 34        Low   Sulphur                 Nil.                         &nbs....

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....bsp;                                       products is carried on. ______________________________________________________________________________________________ The Board had issued a circular which reads as under: "Eligibility of concession under Notification Nos. 74/63-CE, dated 18-5-63 & 353/77-CE., dated 16-12-77. In supersession of the Board's instructions contained, in F. No. 3565-CX-3 dated 16-9-67 it has been decided that since generation of electrical energy (electricity as an intermediate product is incidental in the process and manuf....