- (1.) We have heard Shri R.C. Shukla, learned counsel appearing for the Central Excise department. Shri M.P. Devnath and Shri Nishant Mishra appear for the respondent - assessee. This appeal, under Section 35-G of Central Excise Act, 1944 arising out of an order passed by the Customs, Excise & Service Tax Appellate Tribunal dated 5-3-2013 in Central Excise Appeal No. 55419/2013-Ex, is reported to be beyond time of 23 days. An application has been filed by the department to condone the delay.
(2.) Shri M.P. Devnath, appearing for the respondent - company does not have any objection to the condonation of delay. The application is accordingly allowed. The delay in filing the appeal is condoned. The appeal will be given regular number.
(3.) We have heard learned counsels appearing for the parties, and do not find that any of the substantial questions of law as framed for consideration of this Court arises for consideration of the Court. The CESTAT, after recording the findings, that applying 5% formula to the sale value, the duty demand of Rs. 1,38,34,565/- has arisen, found that when it came to the notice of the appellant that proportionate input and input credit attributable to generation of power which was sold shall not be entitled to Cenvat credit, it reversed the Cenvat credit quantum availed in that respect. The Tribunal found that the dispute was thus reduced only to the extent, as to whether the Cenvat credit in such case could be reversed. Allowing the stay application the Tribunal remanded the matter back to the Adjudicating Authority to examine the aspects referred to in paras 3,4 and 5 quoted as below:-- "3. When dispute is reduced to aforesaid extent it is not desirable to keep appeal pending in Tribunal merely granting waiver of pre-deposit. Therefore, allowing stay application we send back the matter to the learned Adjudicating Authority to examine the following aspects:-- (1) Total value of input used in generation of power and Cenvat credit involved in such inputs; (2) Total input service used in generation of power and the service tax involved in the input service claimed as Cenvat credit; (3) Quantum of input used in generation of power sold outside; (4) Quantum of input service used in generation of power sold outside without being used in manufacture; (5) Quantum of Cenvat credit involved in the input utilised for generation of power sold outside; (6) Quantum of Cenvat credit involved in input service used in generation of power sold outside. 4. If aforesaid aspects are clearly calculated with the assistance of the appellant who shall provide every detail of the aspect, learned authority shall consider whether demand still arises. If the figures are not calculated by the appellant and does not reach to the satisfaction of learned adjudicating authority, he shall pass appropriate order. By this we do not say that he should agree to the appellant because of submission that proportionate Cenvat credit has been reversed. It is left open to the authority to hear the appellant in all fairness and decide the issue afresh. 5. All the contentions raised by the appellant, both on facts and law on the basis of material available on record, shall be considered by the authority and a reasoned and speaking order shall be passed. In the result, stay application is disposed and appeal is allowed by way of remand.";