2024 (9) TMI 770

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....to condone the delay in filing the application for restoration. Though the reasons given are not very satisfactory yet since the appeal had been filed under Section 35G of the Central Excise Act, 1944, way back in the year 2020 and the appeal was pending, and we are required to consider as to whether any substantial question of law arose for consideration we exercise discretion and condone the delay in filing the application for restoration. 3. Accordingly, GA/3/2024 is allowed. 4. GA/4/2024 has been filed to restore the appeal which was dismissed for non prosecution. We have perused the reasons given in the affidavit filed in support of the application and we find that the reasons to be acceptable. Accordingly, GA/4/2024 is allowed. ....

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....iii) Whether the Learned Tribunal failed to appreciate that the assessee/Respondent paid duty on the interface quantity of co-mingled products resulted due to mixing of SKO with MS adopting assessable value of SKO (NPDS) at the prevalent rate instead of paying duty on MS to evade Central Excise Duty as because duty leviable on MS is higher than duty leviable on SKO (NPDS) ? 8. Heard the learned Counsel for either side. 9. The respondent/assessee is a public sector undertaking, Indian Oil Corporation Limited filed the appeal before the Tribunal challenging the order passed by the Commissioner of Central Excise, Haldia, by which the proposal made in the showcause notice was affirmed and higher rate of Central Excise Duty was demanded. A....

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....thority that after removal of goods inter mixing of SKO with MS/HSD amounts to manufacture. The Tribunal noted that there was no such allegation in the show-cause notice and, therefore, the adjudication order travelled beyond the scope of show-cause notice which is not permissible under law. Not stopping with that the learned Tribunal also took note of Section 2 (f) (iii) which defines "manufacture" and held that what amounts to manufacture is only in respect of goods specified under third schedule and it is undisputed that products of the respondent/assessee are not specified under third schedule and therefore, whatever activity mentioned in clause (iii) of Section 2 (f) shall not apply to the goods which are not specified in the third sch....