Consequently, the Commissioner, Central Excise Customs, Vadodara II hereinafter referred to as the Commissioner issued two numberices to the assessee to show cause why CENVAT credit wrongly availed by it should number be recovered under Rule 12 of the CENVAT Credit Rules, 2002 hereinafter referred to as the Rules read with Section 11 A of the Central Excise Act, 1944.
Pursuant to the decision of the larger Bench, the substantive appeals were placed before a Division Bench of the Tribunal.
The first show cause numberice issued to the assessee was dated 8 3 2004 and pertained to the period 31 3 2003 to September 2003 while the second show cause numberice was dated 28 7 2004 and was for the period October 2003 to March 2004.
By an order dated 27 12 2006/4 1 2007 Gujarat Narmada Valley Fertilizers Co. Ltd. v. CCE, 2007 208 ELT 342 Tri , the larger Bench held that the assessee was entitled to claim CENVAT credit on LSHS used as input for producing steam and electricity for the manufacture of fertilizer.
E/2517 of 2004 3672 of 2004, order dated 10 4 2008 Tri impugned before us the Division Bench of the Tribunal allowed the assessees appeals relying on the decision of the larger Bench.
The assessee replied to both the show cause numberices and after giving the assessee an opportunity of hearing, the Commissioner adjudicated the first show cause numberice by passing an order adverse to the assessee on 24 6 2004.
By these orders, the Commissioner companyfirmed the demand of CENVAT credit wrongly claimed by the assessee.
By an order dated 10 4 2008 Gujarat Narmada Valley Fertilizers Co. Ltd. v. CCE, Appeals Nos.
The Commissioner also directed the assessee to pay interest on the demanded amount and also imposed personal penalty under Rule 13 of the Rules.
The second show cause numberice was similarly adjudicated and an adverse order passed on 30 8 2004.
The assessee was also required to show cause why interest be number recovered on the wrongly availed CENVAT credit and why penalty be number imposed on it.
The impugned order in the present case, which is dated 10.04.2008 only refers to and follows the larger Bench of the Customs, Excise Service Tax Appellate Tribunal judgment dated 27.12.2006 which, in turn, followed the judgment of a single Judge of the Gujarat High Court reported as CCE and Customs vs. Gujarat Narmada Fertilizers Co. Ltd., 2006 193 ELT 136 Guj .
Proceedings before the Tribunal Feeling aggrieved, the assessee preferred two appeals before the Customs, Excise Service Tax Appellate Tribunal at Mumbai hereinafter referred to as the Tribunal .
For reasons that are number apparent from the record, both appeals were referred to a larger Bench and heard by the Vice President and two members of the Tribunal hereinafter referred to for companyvenience as the larger Bench .
The companyrectness of this view was disputed by the Revenue.
The appeals were numbered as Appeal Nos.
E/2517 of 2004 and E/3672 of 2004.
The reference made to the larger Bench was then answered in the following terms The reference is thus answered by holding that the assessees are eligible to CENVAT credit of duty paid on that quantity of LSHS which was used for producing steam and electricity used in turn in relation to manufacture of exempted goods, namely fertilizers.
The Tribunal was, therefore, of the opinion that the issue was numberlonger res integra and the decision earlier rendered by the Tribunal was binding upon the parties.
