ORDER
Moheb Ali M., Member (T)
1. The application for stay arose out of the order of the Commissioner (Appeals) who in the impugned order confirmed the order of the Deputy Commissioner, Central Excise in so far as demand for duty of Rs. 32,00,667/- under Section 11A read with Rules 571 of the Central Excise Act and Rules made there under.
2. The applicant is a manufacturer of sugar, molasses denatured spirit etc. He uses duty paid molasses in the manufacture of denatured spirit. This latter product is mostly used captively in the manufacture of country liquor. Since the final product, country liquor is non-exisable he pays 8% of the amount calculated on the price of denatured spirit determined on the basis of comparative price of the same product at which it is sold by other manufacturers. This, according to him, is the procedure laid down under Rule 57CC. The department’s contention is that Rule 57CC is not applicable in a case when goods (denatured spirit) is captively consumed. The Ld. Commissioner (Appeals) while upholding the order of the lower authority ruled that in a situation where Rule 57CC is not applicable, the entire credit taken on the input (molasses) should be reversed. The amount ordered to be reversed is Rs. 32,00,667/-.
3. The applicants’ contention is when denatured spirit is captively consumed the price at which the same goods, is cleared for sale by another manufacturer, being the comparative price of the same goods should be adopted for the purpose of calculating the 8% amount stipulated in Rule 57 CC of Central Excise Rules. He contends that similar method is adopted by other manufacturers of denatured spirit who captively consumed the product and this method had been upheld by the Commissioner of Central Excise, Aurangabad in his order No. BPS/(210)72003 dated 1.8.2003 while disposing of appeals filed by the Department before him. The applicant contends that the impugned order in his case is a departure from the above cited decision. He pleaded that the impugned order is bad in law in view of the ratio of the above cited decision of the Commissioner (Appeals). He holds that he has a strong prima facie case in his favour, Pre-deposit of duty demanded causes him undue hardship.
4. We have heard both sides.
5. It appears the Department is adopting diametrically opposite views where the facts and circumstances are the same. The issue whether Rule 57 CC is applicable when exempted goods are captively consumed and not sold, is interpreted in a manner that discriminates one assessee from another when both are similarly placed. We therefore hold that a strong prima facie case is made out.
6. Pre-deposit is waived.