TMI Blog2010 (10) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... 's contention that at the relevant period the spent solvent is not a marketable product after process of manufacture – Appeal dismissed - 114, 228, 234 and 269 of 2010 - - - Dated:- 5-10-2010 - V.V.S. Rao and Ramesh Ranganathan, JJ. REPRESENTED BY : Shri C. Appaiah Sharma, Sr. SC for C.B.E. C., for the Appellant. Shri Gandra Mohan Rao, for the Respondent. [Judgment per : V.V.S. Rao, J. (Common)]. - This common judgment would suffice to dispose of these four appeals under Section 35G of the Central Excise Act, 1944 (the Act) filed by the Revenue against the common order of the Customs, Excise Service Tax Appellate Tribunal, South Zonal Bench, Bangalore, (CESTAT), dated 19-3-2009, in Final Order Nos. 578 to 582 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such show cause notices were issued to four units of the respondent covering the period from 1995-1996 to 2000-2001. APL submitted their explanation denying any liability. The Commissioner (Appeals), by order dated 29-11-2003, adjudicated the matter and levied duty, penalty and interest under Sections 11A, 11AB and 11AC of the Act and under Rules 9(2) and 209A of the Rules. The Commissioner (Appeals), however, set aside the order in original relying on the decision in M/s. Vorin Laboratories Ltd., Hyderabad vide Order-in-Appeal Nos. 78 79/2003 (H-I) C.E. The appeal filed by the Revenue before the CESTAT was, however, allowed and the matter was remanded. After such remand, the Commissioner (Appeals), by order dated 5-4-2007, held that spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of discharge of excise duty on them does not arise. We find that this Bench of the Tribunal in the case of CCE, Hyderabad v. Everest Organics Ltd., 2008 (226) E.L.T. 554 (Tri.-Bang.), came to the following conclusion : We have carefully considered the submissions. We notice that the Revenue has not appealed against the earlier order passed by the Commissioner (A) in the case of M/s. Vorin Lab. The Commissioner (A) has analysed the facts and has noted that the item has lost its utility and has become "spent solvent". The product is required to be disposed of as they are hazardous under the Pollution Control norms. Therefore, such removal cannot be held to be marketable goods and they are subjected to excisability. Although, the Revenue h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise, Baroda - 2006 (202) E.L.T. 37 (S.C.) and CCE, Hyderabad v. Novapan Industries Ltd. - 2007 (209) E.L.T. 161 (S.C.) and submits thast when the issue of excisability of spent solvent is already decided in the earlier cases in respect of the same assessee or when a similar question is decided by the Commissioner (Appeals) or the CESTAT, the department, having not filed an appeal against the earlier judgment, cannot reagitate the matter. He also relies on various judgments in Collector, Central Excise, Bombay v. S.D. Fine Chemicals Ltd. - 1995 (77) E.L.T. 49 (S.C.), Collector of Central Excise, Baroda v. United Phosphorus Ltd. - 2000 (117) E.L.T. 529 (S.C.), CCE, Chandigarh-I v. Markfed Vanaspati Allied Industries - 2003 (153) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oleum Corporation Ltd., and the same has become final, the department is not entitled to raise the same point in other cases in view of the decisions of this Court in Union of India Others v. Kaumudini Narayan Dalal Another reported in (2001) 10 S.C.C. 231; Collector of Central Excise, Pune v. Tata Engineering Locomotives Co. Ltd., reported in 2003 (158) E.L.T. 130 (S.C.), Birla Corporation Limited v. Commissioner of Central Excise reported in 2005 (186) E.L.T. 266 (S.C.) and Jayaswals Neco Ltd. v. Commissioner of Central Excise, Nagpur reported in 2006 (195) E.L.T. 142 (S.C.), wherein it has been held that if no appeal is filed against an earlier order of the earlier appeal involving the identical issue was not pressed by the revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal considered the question, whether spent solvent (spent methanol, in that case) is liable to duty. It was held as follows. On a careful consideration, we notice from the extracted order of the Commissioner v. Herren Drugs Pharmaceutical Ltd., Order-in-Appeal No. 99/2005, dated 28-6-2005, that the Commissioner has examined the issue in depth and in detail. It has been clearly brought out that the spent solvents had already been utilized in the factory and latter it had undergone further purification for reuse. The excess spent solvents were sold to the outsiders, as it had lost its value and therefore, what was sold was not new goods but only spent solvents which had undergone certain purification process. Such purification proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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