The main legal point established in the judgment is the interpretation and application of Rule 16 of the Central Excise Rules, 2002 and Rule 15 of the Rules of 2008 in relation to the appellant's availing of CENVAT credit on reprocessed products.

JUDGMENT :

Suman Shyam, J.

Heard Dr. Ashok Saraf, learned senior counsel assisted by Mr. P. Baruah, learned counsel appearing for the appellant. We have also heard Mr. Bipul Sharma, learned Standing Counsel, Central Excise Department, appearing for the respondents.

2. The common judgment and order dated 18.07.2017 passed by the learned Central Excise and Service Tax Appellate Tribunal (CESTAT), Kolkata in Appeal Nos.E/75556-75559/14 and Appeal No.E/75434/15 has been assailed by filing the present appeal under Section 35 G of the Central Excise Act, 1944.

3. The following substantial questions of law had been framed by this Court in all these appeals at the time of admission :-

"1. Whether the order dated 18.07.2017 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), East Zonal Bench, Kolkata is based on correct appreciation of the provisions of the Central Excise Act, 1944, the Central Excise Rules, 2002, the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010 and the CENVAT Credit Rules, 2004?

2. Whether the provisions of CENVAT Credit Rules, 2004 are applicable in respect of the duty paid under Section 3A of the Central Excise Act, 1944 and whether CENVAT credit in the present case can be denied by taking recourse to the provisions of CENVAT Credit Rules, 2004?

3. Whether the adjudicating authority could have passed final order on the grounds not taken in the show cause notice by building up a new case against the notice?"

4. The case of the appellant, briefly stated, is that it has been engaged in the business of manufacturing Pan Masala falling under the first schedule of the Central Excise Tariff Act, 1985 and is also covered under Section 3A of the Central Excise Act, 1944 when sold in pouches from its factory. The appellant had received back duty paid finished products, whereafter, those were reconditioned and reprocessed and thereafter sent to the market in bulk packing. The appellant had availed CENVAT credit on such returned goods as per section 16 of the Central Excise Rules, 2002. However, the jurisdictional Additional Commissioner had issued show cause cum demand notice alleging that the appellant had wrongfully availed Cenvat Credit. The matter had ultimately gone up to the (CESTAT) and by the impugned order dated 18.07.2017 passed in a batch of Applications, the learned tribunal had ruled in favour of the revenue. Hence, these appeals.

5. Dr. Saraf, learned senior counsel for the appellants has argued that since the reprocessed products were not packed in pouches with the aid of packing machines, those goods cannot be said to be covered under section 3A of the Central Excise Act, 1944. As such, Rule 15 of the "Pan Masala Packing Machines (Capacity Determination And Collection of Duty) Rules, 2008 [for short "Rules of 2008" would not have any application in this case. As such, submits Dr. Saraf, the appellant's case would fall under section 3 of the Excise Act, 1944 and therefore, would be covered by Rule 16 of the Central Excise Rules, 2002.

6. Responding to the said submission Mr. Sharma, learned departmental counsel, has argued that even if it is held that Rule 15 of the Rules of 2008 is not applicable in this case, even in than, the revenue would have the jurisdiction and authority to verify as to whether the products re-processed at the factory would qualify as "inputs" within the meaning of Central Excise Rules, 2002. On such ground Mr. Sarma submits that even if the impugned order is set aside by this Court, the matter be remanded back for a fresh decision on the above issue.

7. There is no dispute in this case that the scented Pan Masala sold by the appellant in pouches would come under the definition of notified products within the meaning of section 3A of the Central Excise Act, 1944 and accordingly excise duty on those pouches have also been paid by the appellant. Therefore, the only controversy in this case is as to wheth