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2013 (12) TMI 859 - CESTAT NEW DELHICenvat Credit - emergence of non-dutiable goods - The Iron Ore Fines emerge at the stage of crushing of Iron Ore and thereafter Iron Ore fines are taken out from the raw material handling plant - Classification under sub-heading 26011120 of the Tariff or 26011110 - Held that:- Neither the show cause notice nor the order passed by the original adjudicating authority mention as to which cenvat credit availed inputs and/or input services have been used upto this stage. When the show cause notice and the order-in-original do not even mention as to which common cenvat credit availed inputs/input services have been used upto the stage of crushing of Iron Ore at which stage Iron Ore Fines emerge, on this very ground itself, the demand under Rule 6(3) would be liable to be set aside. Moreover in this case, even if, there are some common inputs/input services and the assessee wants to comply with the provisions of sub-rule (2) of Rule 6 by maintaining separate account and inventory of input and input services meant for dutiable and excisable product, it is not possible as the Iron Ore Fines emerge as an unavoidable and inevitable byproduct. The provisions of Rule 6(2) read with Rule 6(3) cannot be interpreted to cast an obligation on an assessee which is impossible and thereafter penalize him for failure to discharge an impossible obligation - Decided against Revenue.
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