TMI Blog2014 (5) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... dent is concerned, he had purchased the inputs and utilised the same for manufacture of a final product. Such goods were duty paid. Rule 3 and 4 of the Cenvat Credit Rules, 2004, thus would enable him to avail the cenvat credit. It is a different thing that the supplier of the goods to the respondent paid excise duty on such product under mistaken belief. - Decided against Revenue. - Tax Appeal No. 1155 of 2013 - - - Dated:- 24-4-2014 - Akil Kureshi And Sonia Gokani,JJ. For the Appellant : Mr. A. Y. Kogje , Adv. For the Respondent : Mr. Anand Nainawati, Adv. JUDGMENT (Per : Honourable Mr. Justice Akil Kureshi) 1. Revenue is in appeal against the judgement of CESTAT dated 23.7.2013 raising the following questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the supplier and appropriated the duty as declared. 3. In case of Collector of Central Excise, Patna. v. Tata Iron and Steel Co. Ltd reported in 2004 (165) ELT 386 (SC), the question of dutiability of such product came up before the Supreme Court on the ground that such product was a mere byproduct of the manufacturing activity. It was held that no excise duty would be leviable on Zinc Dross. It was observed that merely because the assessee was selling the said byproduct, would not mean that the same was a marketable commodity. In short, the Supreme Court held that there was no excise duty liability on the sale of Zinc Dross. 4. The respondent assessee on purchase of such goods utilised the same as input in its own manufacturing acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Sarvesh Refractories (P) Ltd. v. Commissioner of C.Ex Customs reported in 2007 (218) ELT 488 (SC). 7. Rule 3 of the Cenvat Credit Rules, 2004 allows a manufacturer or producer of final product or a provider of taxable service to take cenvat credit of the duty of excise specified in the First Schedule to the Excise Tariff Act. Rule 4 of the Cenvat Credit Rules, 2004 lays down the conditions for allowing cenvat credit. Subrule ( 1) thereof provides that cenvat credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer or in the premises of the provider of output service. Proviso to subrule ( 1) puts certain limitations on such immediate availibility of cenvat credit. We are however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmediate goods to load the assessable value, observed that if the department was of the opinion that the value of the final product was depressed, it could have charged the original manufacturer unit in under invoicing their product. This was however, not done. Valuation was duly approved and the payment duty was also accepted. The tribunal further observed that We find absolutely no substance in the attempt of the learned Commissioner to convert a part of the duty so paid into deposit of duty. There is no legal basis for such presumption. The rules entitled the receipt manufacturer to avail of the benefit of the duty paid by the supplier manufacturer. A quantum of duty already determined by the jurisdictional officers of the supplier unit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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