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2005 (9) TMI 131 - AT - Central ExciseDuty - Recovery of caustic soda from spent caustic soda lye - Manufacturing process Or Not - Refund - Unjust enrichment - 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conclusive to show that the product was excisable and as such, has correctly discharged duty burden, on exemption being withdrawn, does not appeal to us in as much, the product for being held as excisable, needs to satisfy the basic criteria of manufacture.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 dated 10-2-1986. 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. The Hon'ble Supreme Court decision in the case of Jaiprakash Industries Ltd. [2002 (11) TMI 92 - SUPREME COURT] relied upon by the ld. SDR is not applicable to the facts of the case and the same deals with the issue of crushing of boulders into smaller stones and bajari by the mechanical process. Similarly, we find that the issue before the Tribunal in the case of Amrit Chemicals [1989 (8) TMI 204 - CEGAT, NEW DELHI], referred to by ld. DR was as regards interpretation of Notification No. 113/74, dated 20-7-1994 in respect of recovery of caustic soda from spent caustic soda lye and the issue of 'manufacture' was never raised. As such, the Tribunal did not have the occasion to deal with this aspect and granted relief on the basis of applicability of notification. 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]. Both the appeals are disposed off accordingly.
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