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2013 (3) TMI 187 - AT - Central ExciseNon maintenance of separate account and inventory of the Cenvated inputs used for manufacture of dutiable final product and exempted final product - as per the department clearances of sludge (exempted final product) by assessee would be liable to pay an amount equal to 10% of its sale value as per Rule 6(3) of CCR 2004 - Held that:- As decided in Rallis India Ltd. v. Union of India (2008 (12) TMI 46 - HIGH COURT BOMBAY) the payment of an amount equal to 10% of the sale value cannot be insisted in terms of Rule 57CC of the erstwhile Central Excise Rules, 1944 when in course of manufacture of a particular dutiable final product, an exempted final product also emerged as an inevitable and unavoidable by-product. The present Rules 6(2) and 6(3) of the Central Excise Rules, 2004 are in pari materia with the provisions of Rule 57CC of erstwhile Central Excise Rules and, therefore, the ratio of Rallis India Ltd. case (supra) would be applicable to the facts of this case also. Moreover, prima facie view that in a case like this where the waste sludge has emerged as an inevitable and unavoidable waste, and it is impossible to maintain separate account and inventory of the inputs used in the manufacture of finished products and inputs used in the manufacture of exempted product - (waste), the provisions of Rules 6(2) and 6(3) cannot be invoked as lex non cogit and impossibilio is a well settled legal principle which is applicable in taxation matters also. Therefore of the view that the appellant have a prima facie case in their favour and the requirement of pre-deposit would cause undue hardship, the pre-deposit of the amount demanded under Rule 6(3), interest on it and penalty is waived for hearing of the appeal and recovery thereof is stayed till the disposal of the appeal.
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