CEA No.190 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CEA No.190 of 2005 DATE OF DECISION: January 18, 2010 COMMISSIONER, CENTRAL EXCISE P-17, ...APPELLANT SECTOR 1, ROHTAK (HARYANA). VERSUS M/S NESTLE (INDIA) LTD. PATI KALYANA ...RESPONDENT ROAD, SAMALKHA, DISTT. PANIPAT (HARYANA) CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. PRESENT: MR. GURPREET SINGH, SR. STANDING COUNSEL FOR THE APPELLANT. MR. DEVNATH, ADVOCATE FOR THE RESPONDENT. ASHUTOSH MOHUNTA, J.(ORAL) The Revenue has filed this appeal under Section 35G of the Central Excise Act, 1944 (for short 'the Act') against the order dated 20.4.2005, passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for short 'the Tribunal') vide which the Tribunal has followed the earlier judgement in Nestle India Ltd. Vs. CCE, Ludhiana, reported as 2004(61) RLT 641 (CESTAT-Del.) The Revenue had also filed an appeal against M/s Nestle India bearing CEA No.1 of 2006, wherein a Division Bench of this Court vide its judgement dated February 3, 2009, has allowed cenvat credit on the residuary fuel used for the manufacture of dutiable goods and answered the question against the Revenue. Mr. Gurpreet Singh, counsel for the Revenue has argued that CEA No.190 of 2005 -2- show cause notice to the respondent was issued for having claimed modvat credit on the exempted final goods. He has placed reliance on Commissioner of C.Ex. vs. Gujarat Narmada Fertilizers Co. Ltd., reported as 2009(240) E.L.T. 661 (S.C.) to submit that where a manufacturer avails of modvat credit on fuel which is used in the manufacturing of non- exciseable final product, then no modvat credit can be availed by the manufacturer. On the other hand, the respondent has submitted that a perusal of the order of the adjudicating authority does not make any mention as to which non-exciseable product is being manufactured by the respondent. He further submits that the respondent is not manufacturing any non-exciseable goods and hence the judgement rendered by the Apex Court in Gujarat Narmada Fertilizers Co. Ltd. (supra) is not applicable to the present case, because in that case final goods being manufactured by the respondent were non-exciseable. We have perused the order passed by the Assessing Authority (Annexure A-1) and find that there is no mention of any particular goods being manufactured by the respondent which is non-exciseable. The respondent has availed of modvat credit on residuary furnace oil which is used for generation of steam in the manufacture of exciseable products. There is no material on record on the basis which it can be held that the respondent has claimed modvat credit on non-exciseable final product or on the exempted finished goods. This fact was required to be adjudicated upon specifically by the Assistant Commissioner. In view of the above we set aside the impugned order passed by the Tribunal (Annexure A-3) as well the order passed by the Adjudicating CEA No.190 of 2005 -3- Authority and remand the case back to the Assistant Commissioner, Central Excise, Sonepat to decide the mater afresh in the light of aforesaid observations and the judgements referred by us in this order. The parties shall appear before the competent authority on 23.3.2010. Appeal stands disposed of. (ASHUTOSH MOHUNTA) JUDGE January 18, 2010 (MEHINDER SINGH SULLAR) Gulati JUDGE