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2006 (3) TMI 433 - AT - Central ExciseDemands - cleared spent methane clandestinely - Dutiability - Penalty - HELD THAT:- The reasoning of the lower authorities that the existence of notification exempting the product is conclusive to show that the product was excisable and as such, has correctly discharged duty burden, on exemption being withdrawn, does not appeal to us in as much, the product for being held as excisable, needs to satisfy the basic criteria of manufacture. The Hon’ble Supreme Court in the case of U.O.I, v. Ahmedabad Electricity Company [2003 (10) TMI 47 - SUPREME COURT] as held ‘cinder’ as ‘non-excisable’ even though cinder was mentioned as one of the exempted product in Notification No. 76/86-Central Excise. Similarly in the case of Commissioner v. Markfed Vanaspati and Allied Industries [2003 (4) TMI 98 - SUPREME COURT] it was observed that mere mention of a product in tariff entry is no ground for holding the same to be manufactured and the onus to prove manufacture is on the Revenue. We do not find any evidence produced by the Revenue to discharge such burden except referring to the notification. Having held that there is no manufacturing activity involved, we do not find existence of notification as of any consequence so as to hold otherwise. Thus, we hold that caustic soda recovered from spent caustic soda lye was not excisable and duty was not required to be paid. However, the refund of duty already paid, is to be examined in the light of the amended provisions of Section 11B relatable to unjust enrichment, which would be applicable even though the caustic soda was consumed captively, as clarified by the Hon’ble Supreme Court in the case of Union of India v. Solar Pesticides [2000 (2) TMI 237 - SUPREME COURT]. In view of the above judgments and the reasoning adopted by the Commissioner being legal and proper. Therefore, we do not find any merit in these Revenue appeals and reject the same.
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