TMI Blog2006 (3) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 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. - HON'BLE S.L. PEERAN (J) AND T.K. JAYARAMAN (T), MEMBERS For the Appellant : Shri K.S. Bhatt, SDR For the Respondent : Shri C.T. Krishna Murthy, Advocate, ORDER S.L. Peeran, Memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrap not treatable as regularly sold when sale price is determined at the whims of the buyers because there is no ready market for regular sale, thus sales are distress sales - Section 2 (d) and 3 of the Central Excise Act, 1944 - Tariff Item 68 of the erstwhile Central Excise Tariff. And another case in the case of National Fertilizers Ltd., v. Commissioner of Central Excise, Chandigarh reported in 2003 (157) E.L.T. 56 held that Gauzes - worn out/saturated gauzes scrapped after prolonged use in the manufacture of Nitric Acid not dutiable as waste and scrap of the metal is made of even if it may satisfy the definition of waste and scrap given in Note 8 to Section XV of the Central Excise Tariff Act, 1985 - Sub heading 7101.80 ibid. In the case of CCE, Chandigarh v. Markfed Vanaspati and Allied Industries reported in 2003 (153) E.L.T. 491 (S.C.) held that the law still remains that the burden to prove that there is manufacture and that what is manufactured is on the revenue. In this case no new evidence is placed to show that there is manufacture. Spent earth was earth on which duty has been paid. It remains earth even after the processing. Thus if duty was to be levied on it agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal penalty is not imposable on Shri B.K. Prasad under Rule 209A of Central Excise Rules, 1944. Following the ratio of the decisions of the judicial fora cited supra, coupled with the fact that recovering waste methanol/waste solvent through the process of refining does not amount to manufacture and the resultant products waste Methanol/waste solvent does not find a place in the schedule to the Central Excise Tariff Act, 1985, and the failure of the Department to adduce any fresh evidence to prove the fact that the emergence of waste methanol/waste solvent and the subsequent process of refining the same amounts to manufacture, I hold that there was no event of manufacture of the impugned goods and hence the said goods are not excisable. Following the ratio of the above decision and discussion, I hold that the order passed by the Additional Commissioner is liable to be set aside. In view of the foregoing, the following order is passed. ORDER The impugned order of the Additional Commissioner is set aside and the appeal is allowed. 3. Revenue in all these appeals contend that the spent solvents which have been used and reused and latter purified and sold are required to be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facture as held in the case of S.D. Fine Chem (supra), this issue has been affirmed by the Supreme Court. The Tribunal ruling in the case of New Sharrock (supra) held that recovery of caustic soda from spent caustic soda lye by increasing the concentration of spent caustic soda lye does not amount to manufacture inasmuch as caustic soda itself was initial product used for mercering the fabrics. This judgment clearly applies to the facts of the case. We reproduce para 4-8 herein below: 4. The appellants main contention is that the process of concentration by evaporation of water cannot be held to be process of manufacture so as to make recovered caustic soda liable to duty. Mere existence of Notification No. 191/68-Central Excise, upto a certain period and subsequent withdrawal by the same will not, by itself, confer the status of manufacture to the recovery process, if the same cannot be independently considered as manufacture. It has also been argued that they started with caustic soda and through the intermediate process of emergence of spent caustic soda lye, recovered caustic soda only. As such, the starting material and the final material being the same i.e. caustic soda, it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of U.O.I, v. Ahmedabad Electricity Company - 2003 (158) E.L.T. 3 (S.C.) 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 (153) E.L.T. 491 (S.C.) 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. 7. The Hon ble Supreme Court decision in the case of Jaiprakash Industries Ltd. reported in 2002 (146) E.L.T. 481 (S.C.) 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 - 1990 (45) E.L.T. 282 (T), refe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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