TMI Blog2015 (9) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... adopting the above methodology, duty payable for the purpose of investment works out to excise duty payable on the final products but for the said exemption and the said amount is already invested and therefore, no duty is leviable on the compound. The facts were however, not available before the adjudicating authority while passing the order. It is the contention of the appellants that notification 52/2002 is not applicable to the inter-mediate products where the final products are wholly exempt from duty. Since in their case the final products are exempt subject to certain conditions, the said final products cannot be said to be wholly exempt. Matter requires a fresh look by the adjudicating authority - Impugned order is set aside - Matter remanded back - Decided in favour of assessee. - Excise Appeal Nos. 552, 553 & 573/2012 - ORDER NO : FO/A/75415-75417/2015 - Dated:- 30-7-2015 - Dr. D.M. Misra, Judicial Member and Dr. I.P. Lal, Technical Member, JJ. For the Petitioner : Sri T.R. Rustagi, Advocate For the Respondent : Sri A.K. Raha, Special Counsel ORDER Per : DR. I.P. LAL, As directed vide order dated 6/05/2015 passed by the Honble High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions is, therefore, satisfied. He submits that the said notification exempts all goods falling under specified sub-headings from whole of the duties of excise. However, as per condition under Sl. No. (B) of this Notification amount equal to the sum of excise duty, payable, but for the exemption in this notification, shall be utilized by the manufacturer only for investment in plant and machinery or infrastructure or civil works or social projects in Norther East. 3.2 It is his submission that for calculating the amount equal to the duty payable, but for exemption in Notification No. 8/04-CE one has to calculate the amount of duty payable as if Notification No. 8/04-CE does not exist. Now when finished tobacco is dutiable, no duty is payable on compound by virtue of the fact that compound, having been used for captive consumption in the manufacture of dutiable finished chewing tobacco would attract exemption under Notification No. 52/2002-CE. 3.3 He submits that as amount payable on the compound becoming zero, the investment condition by investing the amount equal to excise duty of finished product i.e. chewing tobacco, the investment condition provided in Notification N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the condition of investment in the North East. It is the submission that this fact alone is sufficient to indicate that Notification No. 8/2004-CE dated-21/01/2004 is conditional. He submits that Notification 52/2002 does not exclude the intermediate product from exemption where the final products are exempt subject to certain conditions. It is the submission that these notices are sub-judice before the Hon ble Supreme Court. 4.1 As per contra, the Ld. Special Counsel Shri A.K. Raha for the Revenue submitted that dutiability of the inter-mediate product i.e. Compound in Balti is no longer res integra, in view of the judgement in the case of M/s. Dharampal Satyapal Vs. CCE, New Delhi reported in 2005 (183) ELT 241 (S.C.). 4.2 He submits that since the inter-mediate compound is used in the manufacture of finished goods which are wholly exempt from excise duty, therefore, the benefit of Notification No. 52/2002-CE cannot be extended to the said compound. 4.3 He submitted that benefit of Notification No. 8/2004-CE could be considered subject to fulfillment of the condition that equal amount of sum of excise duty was utilized for the purposes specified in the said notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are eligible for exemption on compound under Notification No.52/2002, as their finished products i.e. chewing tobacco are wholly exempt under Notification No. 8/2004. This notification exempts all goods falling under tariff item 21069020 and chapter 24 of the first schedule to the CETA, 1985 manufactured in a factory and used within the said factory for manufacture of final products. The benefit of this notification is, however, not applicable where the final products are exempt from the whole of the duty of excise leviable. 7.4. It is the contention of the appellants that since the notification No.8/2004 is a conditional one and not an absolute exemption, therefore, the benefit of Notification No. 52/2002-CE cannot be denied to their inter-mediate products i.e. compound used in the manufacture of chewing tobacco which is dutiable but for exemption notification No.8/2004. It is submitted that the Department has already raised the demands to the appellant denying the benefit of exemption notification No. 8/2004. This clearly shows that the said notification is not the absolute exemption notification. 8. On perusal of the order, we find that in para 5.12.1 and 5.12.2 of the or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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