2016 (1) TMI 1426

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....or dutiability. 2. Perusal of the order of the ld. Commissioner (Appeals) shows that the real controversy that was alleged in the SCN was not determined and settled. At this stage, the ld. Counsel for the respondent says that the foundation of the SCN dated 04.02.2002 is to first ascertain whether "Low Sulphur Heavy Stock" (LSHS) is same as "Residual Fuel Oil" (RFO) as is apparent from para-1 of the SCN. According to him, Revenue has made an allegation that the respondent assesse was a manufacturer of LSHS (referred as RFO) falling under chapter heading 2713.30 and such RFO was used to generate electricity. Such generated power was used partly for the manufacture of excisable goods in the factory and partly that sold to TNEB. Revenue sta....

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....and also there was no clearance made issuing any excisable invoices. Since Revenue has come in appeal, the miscarriage of Justice made in adjudication ignoring the real controversy raised in the SCN be redresssed to do justice to both sides. 5. Respondent further submitted that the crucial issue of excisability is to be determined applying twin tests of excisability prescribed by the Apex Court in the case of Board of Trustees Vs. CCE, A.P - 2007 (216) ELT 513 (S.C.) which was never been considered by either adjudicating authority or appellate authority below. While such vital plea was raised all along before both the authority below. Therefore, the respondent still has the right to pursue this legitimate ground on excisability of RFO ap....

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....roleum Corporation Ltd. (supra) was reiterated in Hindustan Zinc Ltd.(supra). 7. On the aforesaid factual and legal background and hearing both sides at length, it is considered necessary that remand of the matter is essential to do justice to both sides on the very crucial issue that has emanated from para-1 of the SCN dated 04.02.02 to determine whether LSHS is equal to RFO and if equal, whether RFO is dutiable following the twin test i.e. process whether constituting manufacture and secondly marketability prescribed by Apex Court in the case of Board of Trustee (supra). So also it is necessary to determine whether the respondent had at any time manufactured RFO and cleared the same issuing any excisable invoice for marketing. The next....