2023 (12) TMI 1103

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....anchi, wherein he has confirmed the demand of Rs.32,82,405/- including Education Cess and SHE Cess along with interest and penalty. He dropped the remaining duty demanded in the Notices. Aggrieved against the impugned order, the Appellant has filed this appeal. 2. Briefly stated facts of the case are that during the period in dispute, the Appellant produced acetylene gas which was used in various departments of the Appellant in relation to the manufacture of final products and also for the repair and maintenance of various plant and machineries. Such acetylene gas being used in the factory for these activities was being cleared without payment of duty by availing the benefit of exemption Notification no. 65/95-CE and 67/95-CE (hereinafter ....

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.... different periods of clearances of acetylene gas for captive consumption. The Commissioner of Central Excise, Ranchi passed a common Order-in-Original confirming the duty of Rs.32,82,405/- including Education Cess and SHE Cess along with interest and penalty and dropped the remaining demand in the Notices. In the impugned Order, the Ld. Commissioner has dropped the demand with respect to the exemption claimed by the Appellant under Notification No. 67/95-CE. However, the demand on the acetylene gas used in the traffic department for repair and maintenance of railway track, wagons etc. the acetylene gas used in 30 shops/departments wherein the Appellant had claimed exemption under Notification No. 65/95-CE was confirmed. Such demand was con....

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....pugned Order is liable to be set aside on this ground alone. In this regard, the Appellant placed their reliance on the decision of the Hon'ble Apex Court in the case of Commissioner of Central Excise, Nagpur v. Ballarpur Industries Ltd., 2007 (215) E.L.T. 489 (S.C.) 6. The Ld. Commissioner has denied the benefit of exemption under Notification No. 65/95-CE dated 16.03.1995 for the acetylene gas used in the traffic department for repair and maintenance of rail tracks, railway wagon and loco on the ground that benefit of exemption notification no. 65/95-CE dated 16.03.1995 is not eligible as the use of acetylene gas for such activity cannot be said to be used for repair and maintenance of machinery installed in the factory. It has been held....

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....cause stoppage of production and can also result in damage of the plant and machinery. The Appellant submits that they claimed the exemption of captively consumed acetylene gas under the Notification 65/95 as well as under 67/95. The adjudicating authority has denied the exemption for the acetylene gas consumed within the factory for repair and maintenance of railway track, railway wagon, loco and in certain shops and departments for repair and maintenance of machineries under the Notification 65/95. However, they are eligible for the exemption under the Notification 67/95, since the said railway track, rail wagons, and locomotives are integral to the manufacture of the goods of the Appellant and are therefore they can be considered as mach....

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....he manufacture of final goods. Since the acetylene gas has been used for repair and maintenance of machineries that are not used for the manufacture of final goods, the exemption will not be applicable. 10. We observe that the Appellant claimed the exemption of captively consumed acetylene gas under the Notification 65/95 as well as under 67/95. The adjudicating authority has denied the exemption for the acetylene gas consumed within the factory for repair and maintenance of railway track, railway wagon, loco and in certain shops and departments for repair and maintenance of machineries under the Notification 65/95. However, we observe that they are eligible for the exemption under the notification 67/95, since the said railway track, rail....