TMI Blog2001 (4) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... uid glucose, dextrose, modified starches, sorbitol and maize starch. The principle raw material is maize which is washed repeatedly with sulphur dioxide dissolved in water to avoid fermentation in the process of and then maize starch is manufactured. The Department alleged that sulphur dioxide gas is consumed captively in the process of manufacture of excisable goods. The appellants were required to pay central excise duty on that part of SO2 which was consumed captively. A number of SCNs were issued. The Assistant commissioner confirmed the demands of duty proposed in the SCNs. The Commissioner(Appeals) while disposing of the appeal of the appellants held that the order has been passed in detail. The fact has not been denied that SO2 is pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factured SO2 nor is there any reference to any material on the basis of which it could be alleged that the appellant had manufactured SO2 gas, yet the SCN demanded duty on captive consumption of SO2 gas. 5. Ld. Counsel submits that the department has alleged that SO2 gas is manufactured which was used to wash maize. He submits that heating/ burning of sulphur gives rise to mixture of gases which are produced in the continuous process. He submits that this mixture of gases is not SO2 gas. He submits that in fact the appellant does not possess the equipment necessary for the manufacture of any gas nor has it the necessary equipment required for producing sulphur dioxide gas. He submits that the mixture of gases contents over 80% of nitrogen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment recognised laboratory showing that the product that comes into existence after burning of sulphur is a mixture of 83% of nitrogen, 15.8% SO2 gas and 0.4% CO2 gas. He submits that such mixture cannot be termed SO2 gas. It must contain 99.98% of SO2 gas. He submits that the adjudicating authority placed reliance on the decision in the case of Punjab National Fertilizers v. C.C.E. reported in 1988 (37) E.L.T. 155. He submits that this decision is no longer goods law inasmuch as the appeal against this decision was allowed by the Apex Court as reported in 1997 (94) E.L.T. A245. He submits that this Tribunal in the case of Mehta Chem Industries v. C.C.E., reported in 2000 (116) E.L.T. 690, held that the department has not adduced any eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He, therefore prays that the appeal may be allowed. 8. Shri M.D. Singh, ld. SDR copiously read from the order of the Assistant Commissioner and submitted that every point was dealt with by the Assistant Commissioner in detail. He submitted that by burning of sulphur, SO2 was produced since the SO2 gas was produced and since SO2 is marketable commodity, therefore the authorities below have rightly demanded duty. Reiterating the findings of the authorities below, ld. SDR prays that the appeal may be rejected. 9. We have heard the rival submissions. On careful consideration of the submissions made and perusal of the records, we find that the short point for determination before us is whether the alleged gas which is a mixture of sulphur, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nasmuch as the appeal against this decision was accepted by the Apex Court holding that This appeal by the assessee impugns the order [1988 (37) E.L.T. 155] of the Customs, Excise and Gold (Control) Appellate Tribunal, which hold that sodium bicarbonate which emerges in the course of the manufacture of soda ash is dutiable. It appears that the same issue in regard to the same assessee came up again before the Tribunal in an appeal for earlier years and the contrary view was taken [1991 (54) E.L.T. 115]. The matter was then examined by the Central Board of Excise and Customs and a circular was issued on 10th September, 1991 informing all concerned that the later view taken by the Tribunal was the correct view. In view of this position, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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