TMI Blog2022 (10) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... n the parts of old plant, as these are not manufactured product by the appellant. Secondly, Revenue has not led any evidence about the old plant disposed, which was acquired in the year 1995-96, that the appellant had taken modvat / cenvat credit. In this view of the matter, this ground is also allowed in favour of the appellant and against the Revenue. The appeal is allowed. - Excise Appeal No. 50296 of 2022-SM - FINAL ORDER NO. 50946/2022 - Dated:- 28-9-2022 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Sh. O. P. Agarwal, C. A. for the appellant Sh. Ishwar Charan, Authorised Representative for the respondent ORDER Heard the parties. 2. The issue involved in this appeal are- (i) Whether demand of Rs. 1,87,150/- ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince was not paid, therefore, demand of Rs.1,87,150/- was raised. Another demand of Rs.1,55,513/- was raised alleging duty is payable on clearance of zinc parts/ scrap of old plant. Both the demands were confirmed vide impugned orders under Rule 14(1)(ii) ibid read with Section 11(10) of Central Excise Act, 1944 with interest under Rule 14(1)(ii) read with 11AA(1) (2) and equal penalty was imposed under Rule 15(2) with Section 11AC(1)(c) ibid. 5. Show cause notice dated 01.10.2019 was issued invoking the extended period of limitation for the demand relating to the period 01.04.2016 to 30.06.2017. The show cause notice was adjudicated on contest and the proposed demand was confirmed alongwith interest and equal amount of penalty by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by-product, and still said that Rule 57CC will apply. The appellant seeks to apply Rule 57CC when Rule 57D does not talk about applicability of Rule 57CC to final product and by-product, when the by-product emerged as a technological necessity. Accepting the argument of the appellant- would amount to equating by-product and final product thereby obliterating the difference, though recognized by the legislation itself. Significantly this interpretation by the Tribunal in Sterlite (supra) was not appealed against by the department. 7. As regards the second issue for demand of duty of Rs.1,55,513/- on sales/ clearance of old plant (zinc components), it was urged that this plant was acquired during the financial year 1995-96 on which no modv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly upheld the invocation of extended period of limitation. Being aggrieved, the appellant is before this Tribunal. 10. Learned Counsel Sh. O. P. Agarwal urges that so far the demand on clearance of zinc dross/ ash is concerned, the issue is settled by the Hon ble Apex Court, that Rule 6(3) is not attracted in case of clearance of waste product. Rule 6(3) is attracted only where an assessee, manufactures two final products, one of which is dutiable and the other is not dutiable. In the facts and circumstances of the present case, the appellant only manufacture ERW tubes / pipes. He also relies on the ruling of Bombay High Court in the case of Rallis India Ltd., vs. Union of India - 2009 (233) ELT 301 (Bom.) wherein under similar facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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