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2012 (4) TMI 502 - AT - Central ExciseCENVAT Credit - Denial of refund claim - Held that:- There is confusion about the product involved in the instant case. Both in the order of the adjudicating authority and the appellate authority, they have referred to the goods as potable alcohol (rectified spirit) as an exempted item. Chapter Note 4 to Chapter 22 states “This Chapter does not cover alcoholic liquors that for human consumption”. Further entry 84 of List 1 (Union List) the Seventh Schedule to the Constitution itself makes it clear that alcoholic liquors for human consumption is outside the purview of Central Excise levy. Thus, potable alcohol is not an excisable item at all. Thus the reference to potable alcohol as an exempted item by the lower adjudicating and appellate authorities is totally incorrect. Consequently, no Cenvat credit of duly paid on molasses can be taken under the Cenvat Credit Rules, 2004, in respect of molasses used in the manufacture of potable alcohol, as the Central Excise Act, 1944 and the Cenvat Credit Rules apply to excisable goods and not to non-excisable goods. Availment of Cenvat credit was void ab initio. - Unless all the relevant facts mentioned above are ascertained, the quantum of eligible refund can not be determined. Therefore, the matter is remanded back to the original adjudicating authority for fresh consideration after ascertaining all the relevant facts and thereafter, pass an appropriate order in accordance with law - Decided in favour of assessee.
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