TMI Blog2010 (11) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... ndeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : Ms. Monika Batra, SDR, for the Appellant. Shri T.R. Rastogi, Advocate, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. Heard the DR for the appellant and Advocate for the respondents. 2. This appeal arises from the order dated 30-11-2004 passed by the Commissioner (Appeals), Chandigarh. By the impugned order, the appeal filed by the respondents against the order of the Deputy Commissioner, Shimla was allowed and the said order of the Deputy Commissioner was set aside. The Deputy Commissioner, Shimla vide his order dated 28-7-2004 had confirmed the demand of duty to the tune of Rs. 54,007/- against the respondents along with interest and had imposed penalty of Rs. 50,000/-. 3. The respondents were manufacturing Additive Mixture (Tobacco Essences) which was utilised by them captively for manufacture of their final product, namely, chewing tobacco during the period from 1-4-2002 to 16-10-2002. Though during the relevant period, the payment of duties of BED, SED and AED were exempted in respect of captively consumed goods classifiable under Chapter 24 in terms of Notification No. 121/94 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of excise if the same are captively consumed would also apply in relation to NCCD and hence the exemption from payment of the said duty would also be available to the assessees during the relevant period. 6. As regards the third point for consideration, it has been observed that if NCCD was required to be paid on additive mixture captively consumed in the manufacture of branded chewing tobacco, then the said NCCD so paid was available to the respondents as cenvat credit and therefore, the revenue neutral situation will clearly arise and in that view of the matter, the entire exercise is of academic nature. 7. The appellants have assailed the impugned order on the ground that the Commissioner (Appeals) erred in ignoring the decision of the Apex Court in the matter of T.N. State Transport Corpn. Ltd. v. C.C.E., Madurai reported in 2004 (166) E.L.T. 433 wherein it was held that the product having shelf life of 8 to 10 hours are considered as marketable and hence chargeable to duty. Secondly, the Commissioner (Appeals) erred in ignoring that the exemption to NCCD was not available for the relevant period as there was no notification granting such exemption. Thirdly, the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals) that the matter has to be held to be of academic nature as demand of duty entitles the assessee to avail the credit. 10. As was rightly understood by the Commissioner (Appeals), the matter involves three issues for consideration - (a) Whether the additive mixtures prepared by the assessees are excisable products? (b) Whether the exemption under Notification No. 121/94-C.E., dated 11-8-04 is available to NCCD during the period 1-3-2001 to 16-10-2002? and (c) Whether the revenue neutral situation comes in the instant case and consequently, the entire exercise is academic? 11. As regards the first point for consideration, there is no dispute that the additive mixture prepared by the respondents were being captively consumed for manufacture of final product. Indeed, it is only on this ground itself, the Commissioner (Appeals) has held that the product cannot be considered to be marketable and therefore, not excisable. The reliance placed in that regard in the Board Circular relating to agarbathi mix for use in the manufacture of Agarbathi. 12. The law on the point of marketability of a product is well settled. It has been clearly held by the Apex Court that merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Notification No. 52/2002 which came into force with effect from 17-10-2002, the exemption was granted in supercession of the Notification 121/94. There is no dispute that under the Notification 121/94, no exemption in relation to NCCD was available. Undisputedly, the NCCD was levied under the provisions of Finance Act, 2001. The terms Excise duty as understood in terms of the provisions comprised under Central Excise Act, particularly in Section 3 read with definition clause would restrict to the duty leviable under the said Act or any other Act even such duty may be part of the revenue or part of the indirect tax. Even though the NCCD is stated to be treated as excise duty in terms of Finance Act, 2001, it would not qualify to be excise duty under the said Act. 17. Besides, the question of grant of exemption depends upon the phraseology used in the notification dealing with the subject of exemption. The Tribunal or any authority under the said Act cannot extend or abridge the scope of exemption under any exemption Notification. This has been clearly explained in the decision of the Tribunal in the matter of Khatri Kimam Co. P. Ltd. 18. The finding about the availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the Apex Court in the case of Union of India v. Dhanwanti Devi and Others as reported in 1996 (6) SCC 44. The Apex Court had ruled thus - 9. .every decision contains three basic postulates - (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) states of the principles of law applicable to the legal problems disclosed by the facts; and (iii) Judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the Judgment. Every Judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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