TMI Blog2009 (3) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents/assessees. Hence, these appeals are filed by-the Revenue. Held that- In our considered opinion, the excisability in the product goods would decide the leviability of excise duty. If product ‘spent solvents’ are considered as non-excisable, the question of discharge of excise duty on them does not arise. Thus As the Commissioner (Appeals) has correctly come to the conclusion that the spent solvent in all these cases are not excisable products, the ratio of the decisions cited by the learned Counsel covers the issue in favour of the assessee/respondent, accordingly, respectfully following the same, we find that the issue being no more res integra, the appeals filed by the Revenue are devoid of merits. All the appeals are rejected and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944 2. The issue involved in these cases, is that the respondents in all these cases are the manufacturers of Bulk Drugs and Bulk Drug Intermediates. During the course of manufacture of Bulk Drugs waste Industrial solvent/Recovered solvents arise. The lower authorities during the scrutiny of the records found that the respondent have sold certain quantities of spent solvents without payment of duty and has cleared the same in the guise of waste Industrial solvents. Show cause notices were issued to respondent. At the appellate stage, the learned Commissioner (Appeals) following the various decisions of the Tribunal held in favour of the respondents/assessees. Hence, these appeals are filed by-the Revenue. 3. The main grounds rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing is submitted. In terms of Chapter Note 10 of Ch. 29 of the schedule to the CET Act, 1985, it has been specifically mentioned that: "within any one heading of this Chapter, derivatives of a Chemical compound (or group of chemical compounds) are to be classified in the same sub-heading as that compound (or group of chemical compounds) provided that they are not more specifically covered by any other sub-heading and that there is no residual sub-heading named "other" in the series of the sub-headings concerned". 3.4 Therefore in terms of the above Chapter note, the derivatives of Toluene are classifiable under chapter heading No. 2902.30 of the Schedule to the Central Excise Tariff Act, 1985. This classification of Toluene is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. CCE, Hyderabad v. Aurobindo Pharma Ltd. as reported at 2006 (200) E.L.T. 236 (Tri.-Bang.), and in the case of CCE, Hyderabad-IV v. Sreepathi Pharmaceuticals Ltd. - 2006 (205) E.L.T. 273 (Tri.-Bang.), CCE, Hyderabad-III v. Natco Pharma Ltd. - 2007 (208) E.L.T. 573. It is his submission that in all these cases, the learned Commissioner (Appeals) has held that the spent solvents are not excisable. It is his submission that excisability of the goods leads to the root of the issue and hence, the learned Commissioner (Appeals) has correctly decided the issue. 6. We have considered the submissions made at length by both sides and perused the records. We find that in the case of the respondent i.e. Aurobindo Pharma Ltd. (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Although, the Revenue had taken the grounds for valuation but the assessee had contested the issue of excisability. Since the question of excisability is fundamental to the matter, the Commissioner (A) was justified in taking up this issue and deciding it in the light of the earlier judgment. There is no merit in this appeal and the same is rejected." 8. It is also seen that this judgment of the Tribunal is a recent judgment given in 2008 and was following various judgments of the Tribunal. 9. As the learned Commissioner (Appeals) has correctly come to the conclusion that the spent solvent in all these cases are not excisable products, the ratio of the decisions cited by the learned Counsel covers the issue in favour of the assessee/res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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