TMI Blog2006 (7) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... arises as a technological necessity is required to be accepted. The Ministry of Environment Forests also has treated the Corex Gas as an off gas and as an environmental hazard. The off gases have been treated as by-products in all the three cited judgments viz. (i) GAIL; (2) Hi-tech Carbon and (3) Phillips Carbon Black. Therefore, these three judgments would clearly apply to the facts of the case. Furthermore, we notice that in the appellants own case, this Bench, by Final order[ 2006 (6) TMI 308 - CESTAT, BANGALORE] has considered Non-granulated Slag arising during the course of manufacture of HR Coils as a by-product. The flow chart shows the emergence of slag at the same stage where Corex Gas has come into existence. Therefore, the analogy drawn by the learned Counsel that the Non-granulated Slag, which has been treated as a by-product should be applied to the Corex Gas arising in the same stage, is required to be accepted by following the ratio in the Final Order [ 2006 (6) TMI 308 - CESTAT, BANGALORE] . In sum, the ratio of the cited judgments would apply to the facts of the case. The plea of the learned JDR that investigation has led to a different conclusion is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are, therefore, rejected. 5. In all these four appeals, the issue is common arising from four adjudication orders viz. (i) 29/2005, dated 8-12-2005; (ii) 28/2005, dated 16-11-2005; (iii) 18/2005, dated 6-7-2005; and (iv) 10/2004, dated 30-7-2004. 6. The Revenue has proceeded against the appellants for levying duty in respect of a by product viz., Corex Gas which, the appellant claim to be an Off gas which arises as a technological necessity and is a by product, which cannot be subjected to the provisions of erstwhile Rule 57CC of CE Rules equivalent to Rule 57AD of CE Rules read with Rule 6(3) of Cenvat Credit Rules, 2002, for demanding 8% of amount equivalent to the price. The Revenue s contention is that since the goods had been cleared at NIL rate of duty, they are required to discharge 8% equal to the price in terms of the said provision. 7. The learned Counsel has filed a list of citations and the gist of the order to show that the issue is covered in their favour. Further reference is made to the Final Order No. 1036/2006, dated 8-6-2006 [2006 (205) E.L.T. 896 (Tribunal)] passed by this Bench in their own case wherein this Bench has held that non-granulated slag is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mud is not excisable. [paras 4 5 of the decision]. 8. EID Parry (India) Limited v. CCE - 2004 (176) E.L.T. 734 (T-Che.) Chemicals used as inputs in manufacture of sugar viz. a dutiable product and not in the manufacture of bio-compost, an exempted product. Rule 6 is not applicable. [paras 5 6 of the decision]. 9. Dalmia Magnesite Corporation v. CCE - 2003 (107) ECR 298 (T-SZB) Furnace oil used as fuel in the manufacture of exempted intermediate product, demand of amount under Rule 57CC is not sustainable. 10. CCE v. Dharani Sugars Chemicals - 2002 (102) ECR 590 (T) Bagasse emerging during manufacture of sugar and molasses is not a final product and hence Rule 57CC is not applicable. 11. BOC India Limited v. CCE - 2003 (158) E.L.T. 47 (T-Kol.) Carbon di-oxide free air emerging as by-product during manufacture of nitrogen and oxygen, Rule 57CC is not applicable [para 6 of the decision]. 12. UOI v. Ahmedabad Elect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. Sterlite Industries India Ltd . v. CCE - 2005 (191) E.L.T. 401 (T-Che.) Sulphuric acid emerging during manufacture of copper anode is a by-product. Even if the by-product emerging is exempted from duty, the Cenvat credit is not demandable as per Rule 57D. The benefit of Rule 57D cannot be taken away with the introduction of Rule 57AD/57CC or Rule 6 of the Cenvat Credit Rules, 2004. [para 29] 20. Narang Plastics Pvt. Ltd . v. CCE - 2006 (200) E.L.T. 548 (Tri.) = 2006 (134) ECR 449 (T.-Bang.) When the appellant had reversed credit on inputs, there is no requirement to insist on payment of 8% of the price of the exempted goods. 21. Jindal Vijayanagar Steel Limited v. CCE, Belgaum Final Order No. 1036/2006, dated 8-6-2006 passed by this Honourable bench in Appeal No. E/535/2005 in the appellant s own case. Non-granulated slag is a by-product emerging in the course of manufacture of HR Coils and the provisions of Rule 57CC or Rule 6(3) would not be applicable to by-products. Board Circular dated 3-4-2000 was relied on. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C read with Rule 6(3) and amended Rule 57AD of CE Rules is attracted in this matter. 12. The learned Counsel submits that the appellants contention is that the item Corex Gas is a by-product. He submits that merely because they have filed declaration that by itself will not dis-entitle them from raising a plea that Corex Gas is by-product. The learned Counsel refers to the letter dated 19-1-2001 issued by the Ministry of Environment Forests, Government of India, addressed to the appellants, who have considered the off gases from Corex plant to be treated as an Off gas. He further refers to the letter dated 6-3-1995 issued by the same Ministry treating the item to be an off gas. He submits that off gas has to be treated as a by-product in the light of the cited judgments. Since the judgments of Gas Authority of India Ltd; Hi-tech Carbon, Phillips Carbon Black Ltd. (cited supra), deals with the emergence of an off gas/slag/lean gas and the same has been treated as a by-product, therefore, the ratio of these three judgments would clearly apply to the facts of the case. It is his submission that the Ministry of Environment Forests has accepted the proposition that the gas which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Forests also has treated the Corex Gas as an off gas and as an environmental hazard. The off gases have been treated as by-products in all the three cited judgments viz. (i) GAIL; (2) Hi-tech Carbon and (3) Phillips Carbon Black. Therefore, these three judgments would clearly apply to the facts of the case. Furthermore, we notice that in the appellants own case, this Bench, by Final order No. 1036/2006, dated 8-6-2006 [2006 (205) E.L.T. 896 (Tri.)] has considered Non-granulated Slag arising during the course of manufacture of HR Coils as a by-product. The flow chart shows the emergence of slag at the same stage where Corex Gas has come into existence. Therefore, the analogy drawn by the learned Counsel that the Non-granulated Slag, which has been treated as a by-product should be applied to the Corex Gas arising in the same stage, is required to be accepted by following the ratio in the Final Order No. 1036/2006, dated 8-6-2006. In sum, the ratio of the cited judgments would apply to the facts of the case. The plea of the learned JDR that investigation has led to a different conclusion is not the subject matter of these appeals. As there is no estoppel in statute, Revenue can c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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