TMI Blog2011 (4) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... T Credit Rules - Appeal is allowed - E/453/2010 - - - Dated:- 7-4-2011 - Mrs. Archana Wadhwa, Dr. P. Babu, JJ. Shri M.A. Patel, Adv. for the Assessee; Shri R.Srova, JDR for the Revenue. Per: Mrs. Archana Wadhwa: After hearing both sides, duly represented by Shri M.A. Patel, learned Advocate appearing for the appellants and Shri R.Srova, learned JDR appearing for the Revenue, we find that the appellants are engaged in Detergent Cakes/Powders and Fertilizers falling under Chapters 34 and 31 of 1st Schedule of Central Excise Tariff Act, 1985. 2. During the course of manufacture of detergent washing powder, a bye-product, viz., spent sulphuric acid emerges which is classifiable under chapter sub heading 28070010. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 6(3)(a) of Cenvat Credit Rules, 2004 and therefore in terms of Rule 6(3)(b) of Cenvat Credit Rules, 2004 and therefore in terms of Rule 6(3)(b) Cenvat Credit Rules ibid, they proposed reversal of 10% of the price of the goods excluding the taxes paid on such goods at the time of their clearance. Penalty under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11AC and interest under Section 11AB of Central Excise Act, 1944 was also proposed. The said Show Cause Notices were adjudicated vide the impugned orders and recovery along with interest was confirmed and penalties equal to demand was also imposed on the appellant. 4. Aggrieved with the said order of original adjudicating authority, Revenue filed the appeal before Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Ltd. Vs. UOI reported in 2009 (233) ELT 301 (Bom.) has reversed the Larger Bench decision of the Tribunal and has held that the provisions of Rule 6 are not applicable to bye-products. 6. In fact, we find that the Commissioner(Appeals), in his impugned order, while allowing the Stay Petition of the appellant, has observed that the issue is covered by the earlier order of the Tribunal in the same appellant s case and has thus granted unconditional stay. For better appreciation, we reproduce Para 6 of Commissioner(Appeals) s order. 6. I have carefully gone through the case records, submissions made in the miscellaneous application, memorandum of appeals and record of personal hearing. I find that in the appellant s own unit situated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re no more applicable and new CENVAT Credit Rules are operative. However, in the appellant s case, the Spent Sulphuric Acid has been admitted by the appellant as a final product generated while manufacturing detergent products and cleared on payment of duty and as exempted goods under different notification for use in the manufacture of fertilizers. Hon'ble Supreme Court in the case of M/s Nirma Chemical Works reported at 2002 (146) ELT 485 (SC), has also held that Spent Sulphuric Acid is to be classified under Heading 28.07 of the Tariff item. Since the appellant is manufacturing exempted and dutiable Spent Sulphuric Acid, Rule 6 of Cenvat Credit Rules, 2004 shall apply. I, therefore, differ from Hon ble CESTAT s order No. A/2350/WZB/AHD/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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