A show cause numberice dated CIVIL APPEAL NO.4270 OF 2002 2 28th April 2000 was issued by the Revenue, the appellant herein, to show cause as to why excise duty of Rs.17,83,678/ be number imposed on the Methane gas produced by the respondent and used captively during the period from 01.04.1995 to 31.07.1997 by invoking extended period under the proviso to Section 11A I of the Act.
Briefly stated, the facts of the case are that the respondent assessee was engaged in the manufacture of de natured Ethyl Alcohol and during the manufacture of de natured Ethyl Alcohol, a residue known as spent wash companyes into existence and the same is reacted in a closed type digester and Methane gas is produced which, in turn, is used by the respondent as fuel in distillery.
O R D E R CIVIL APPEAL NO.4270 OF 2002 The present appeal has been filed under Section 35L b of the Central Excise Act, 1944 the Act against the Final Order No.63/2002 C dated 15th March 2002 in Appeal No.
The issue involved in the present appeal is whether Methane gas classifiable under Chapter Heading 2711.29 specified in the Schedule to the Central Excise Tariff Act, 1985 is liable to excise duty when companysumed captively and number marketed.
Assessee, in response to the said numberice, took a stand that Methane gas produced by it is number marketable and, therefore, numberexcise duty companyld be levied on the same.
However, numberfinding was recorded regarding invocation of CIVIL APPEAL NO.4270 OF 2002 3 extended period.
This finding was arrived at on the basis that the burden to prove that the gas in question is marketable was on the Department and the Department failed to discharge the same.
The Adjudicating Authority, vide order dated 03rd April 2001, companyfirmed the demand.
Revenue, being dissatisfied, filed an appeal before the Tribunal which was dismissed by the impugned order.
E/2659/2001 C passed by the Customs, Excise Gold Control Appellate Tribunal, New Delhi for short the Tribunal.
A penalty of Rs.4,50,000/ Four Lac Fifty Thousand under Rule 173Q of Central Excise Rules, 1944 and Rs.17,83,678/ Seventeen Lac Eighty Three Thousand Six Hundred Seventy Eight under Section 11AC of the Act was also imposed.
The appellate authority accepted the appeal and came to the companyclusion that the gas in question is number marketable.
Assessee, being aggrieved, filed an appeal before the Commissioner Appeals .
Hence, the Tribunal companyfirmed the order of the Commissioner Appeals .
