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TATA METALIKS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, PUNE-II

2010 (1) TMI 1065 - CESTAT MUMBAI

CENVAT credit - Since the appellants do not maintain separate accounts in respect of inputs used in the manufacture” of final products and exempted goods, the appellants are required to pay 10% of value of Iron Ore Fines and Coke Breeze as per provisions of Rule 6(3)(b) of CCR 2004 - E/617/2009-Mum - A/6/2010-WZB/C-II/EB - Dated:- 12-1-2010 - Shri B.S.V. Murthy and Ashok Jindal, JJ. Shri S. Sarkar, Consultant, for the Appellant. Shri K. Lal, SDR, for the Respondent. ORDER The appellants are enga .....

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cture and the resultant product namely Iron Ore Fines and Coke Breeze are cleared without payment of duty, it results in situation whereby the appellants are clearing both exempted and dutiable products. Since the appellants do not maintain separate accounts in respect of inputs used in the manufacture of final products and exempted goods, the appellants are required to pay 10% of value of Iron Ore Fines and Coke Breeze as per provisions of Rule 6(3)(b) of CCR 2004. 2. After issue of show cause .....

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nder Section 11AC of Central Excise Act, 1944. 3. Heard both sides. 4. Learned Advocate for the appellants submits that both Iron Ore Fines and Coke Breeze arising out of Iron Ore and metallurgical coke are nothing but waste, refuse and not final products. He relies upon several decisions of the Tribunal in support of his contention that Iron Ore Fines and Coke Breeze are nothing but waste material. Following cases are relied upon by the learned Advocate :- (a) CCE, Raigad v. Vikram Ispat Ltd. - .....

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aste is generated during the manufacturing process and the same is cleared without payment of duty and duty cannot be demanded under provisions of Rule 57CC of erstwhile Central Excise Rules, 1944. 6. Further he also submits that the decision of the Tribunal in the case of Narmada Gelatines Ltd. v. CCE, Bhopal - 2009 (233) E.L.T. 332 (Tri.-Del.) wherein the Tribunal has followed the ratio laid down by the Hon ble Bombay High Court and in this case a portion of period related to the period when t .....

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t even though there is no corresponding Rule 57D of erstwhile Central Excise Rules in the new Cenvat Credit Rules. However, he fairly agrees that the decision of the Hon ble Bombay High Court in Rallis India Ltd. case, the decision of the Tribunal for Narmada Gelatines Ltd. case and relevant portion of CBEC Manual which are cited before us were not cited before the learned Commissioner when he passed the impugned order. 7. The learned DR on the other hand submits that the learned Advocate for th .....

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of India - 2007 (216) E.L.T. 347 (S.C.) in support of his contention. According to him undue hardship has to be established before the Tribunal and it is to be proved on case to case basis. He also submits that the appellants have not established undue hardship in this case. He also relies upon the decision in the case of CCE, Bangalore-III v. McDowell & Co. Ltd. - 2005 (186) E.L.T. 145 (Kar.) in support of his contention that the Tribunal has to consider all the issues in detail and justify .....

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n by the appellant results in a product with distinct name, character and use which is totally different from the raw materials which are used. Therefore he submits that the ingredients of manufacture are existing in this case. He reiterates the observation of the Commissioner that the appellant had not shown, the clearance of these products without payment of duty, in returns filed by them and only because of investigation this could be detected. He also submitted that the Superintendent who ha .....

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ade by both sides. 9. We have heard both sides extensively on law, facts as well as circumstances of the case. Since the matter was heard extensively, we consider, instead of deciding the stay application, it would be appropriate to take the matter for final decision. While the learned DR on behalf of the Revenue quoted two decisions of Hon ble Supreme Court and also read the relevant paragraphs to show the meaning of undue hardship, Section 35F and implication of prima facie case etc., we note .....

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to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens faith in the impartiality of public administration, interim relief can be given . Therefore, we cannot agree with the learned DR that the explanation of prima facie case is not sufficient for the purpose of grant of stay. However, we agree that each case has to be decided on the fac .....

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h Court has observed that the order passed is a non-speaking order. 10. Coming to the present case we find that the decisions of the Tribunal in the case of Vikram Ispat Ltd., Aparant Iron & Steel Pvt. Ltd. and Narmada Gelatines Ltd. are all squarely applicable to the facts of the case. In all these cases the Tribunal was considering whether just because by-product or waste arising during the course of manufacture were cleared without payment of duty, department will be right in invoking the .....

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