Jainendra Kumar Ranka, J. - (1.) THIS Central excise appeal is directed against the order of the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (in short "CESTAT") dated July 14, 2003. The brief facts, as emerging on the face of record, are that the respondent -assessee is engaged in the manufacture of parts and accessories of motor vehicles falling under Heading 87.08 and forging items of Chapter 72 of the Schedule to the Central Excise Tariff Act, 1985. They were also availing of Modvat credit in respect of furnace oil in terms of rule 57A of the Central Excise Rules, 1944.
(2.) THE assessee took credit of duty paid on the furnace oil on the basis on the invoices issued by M/s. Bharat Petroleum Corporation Ltd., Bulk Depot, Jaipur (M/s. BPCL) under rule 57G wherein, in these invoices, BPCL have charged duty at 15 per cent, ad valorem from the customers during March, 1999 to May, 1999 and accordingly, claimed Modvat credit on the basis of such invoices. The assessing officer was of the view that the assessee had wrongly availed of Modvat credit amounting to Rs. 32,052 in excess on the basis of invoices issued by M/s. BPCL, as given in the annexure A to the show -cause notice. In pursuance of the show -cause notice an explanation was offered. It was contended by the assessee that they have debited the amount of Rs. 32,052 in their RG -23A Pt. -II vide entry No. 50, dated October 30, 1999, and that they have not used this amount of credit taken by them. Ultimately the assessing officer accepted the contention of the assessee and allowed Modvat credit amounting to Rs. 32,052 by observing that the manufacturer of the input is a domestic unit as is apparent from the invoices issued by the depot of M/s. BPCL and further observed that Notification No. 5/1994 -CE (N.T.), was superseded by Notification No. 21/1999 -CE (NT.), dated February 28, 1999 it was further observed that Notification No. 21/1999 -CE (N.T.), does not have any restriction regarding the admissibility of Modvat credit of duty paid on furnace oil as was the case with Notification No. 5/1994 -CE (N.T.) with effect from May 3, 1997 and accordingly, as per his order held that the provision regarding restricted admissibility of the final product was eligible to the Modvat credit on furnace oil received by them with effect from March 1, 1999 to the fullest extent of duty actually paid on furnace oil by the manufacturer. Accordingly the claim was allowed.
(3.) IT is thereafter, that an order under section 35E(2) of the Act came to be passed by the Commissioner, Central Excise which is purported to be an order of review directing the assessing officer to file an appeal before the Commissioner (Appeals), Central Excise and Customs, Jaipur within stipulated period for determination in view of the observations made by the Commissioner for correctness or otherwise of the order passed by the adjudicating authority on August 31, 2001 allowing Modvat credit amounting to Rs. 32,052. The Commissioner (Appeals) vide order dated January 2, 2003 upheld the findings of the adjudicating authority and approved the order passed by it dated August 31, 2001. Accordingly, the Departmental appeals were dismissed. This order was challenged, by the Revenue before the Tribunal who as aforesaid, has also dismissed the appeal of the Revenue.;