TMI Blog2012 (8) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... ane. Therefore, by no stretch of imagination it can be said that the assessee possibly could have maintained separate account for the inputs for production of sugar and molasses (excisable item) and bagasse - Moreover, neither the show cause notice nor the impugned Order-in-Appeal mentions as to which common Cenvat credit availed inputs have been used in manufacture of sugar and molasses (dutiable final products) and bagasse (exempted final product). Since Bagasse emerges at sugarcane crushing stage, there is no possibility of any input-chemicals etc. having been used at that stage. Waiver granted - appeal allowed - decided in favor of appellants. - E/1064-1065, 1218, 1226 and 1219/2012-Mum - Final Order Nos. A/906-910/2012-WZB/C-II(EB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt after relying the decision of the Hon ble Supreme Court in the case of CCE v. Shakumbhari Sugar Allied Industries Ltd. - 2005 (189) E.L.T. A62 (S.C.) held that the bagasse is nothing but a waste obtained during manufacture of sugar and cannot be regarded as a final product exempt from duty. The applicant also relied upon the decision in the case of Indian Potash Ltd. v. C.C.E., Allahabad - ATT-2012-172-CESTAT = 2012 (281) E.L.T. 622 (T) whereby the demand in respect of Bagasse which was confirmed on the same ground was set aside. 5. In respect of press mud, the contention of the applicant is that the Tribunal in the case of Amaravathi Co-Operative Sugar Mills Ltd. v. CCE, Coimbatore 2012-TIOL-937-CESTAT-MAD = 2013 (291) E.L.T. 126 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t excisable goods. As the goods are produced during the manufacture of sugar and molasses and nil rate of duty are applicable and the demands are rightly made. 8. We find that the demand is confirmed by invoking the provisions of Rule 6 of Cenvat Credit Rules, 2004 which provides that in case of manufactured products, both dutiable as well as exempted goods by availing credits in respect of common inputs, the manufacturer has to maintain separate account for the manufacture of exempted goods. In case, the manufacturer is not maintaining separate accounts, the manufacturer is liable to pay 5%-10% of the price of the exempted goods. The case of the Revenue is that bagasse and press mud are excisable goods, and the manufacturer of sugar and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have maintained separate account for the inputs for production of sugar and molasses (excisable item) and bagasse. Thus, in our considered view, the amendment in Finance Act, cited by Shri Nagesh Pathak, AR and the Board Circular would not make any difference in the facts and, circumstances of the case. Moreover, neither the show cause notice nor the impugned Order-in-Appeal mentions as to which common Cenvat credit availed inputs have been used in manufacture of sugar and molasses (dutiable final products) and bagasse (exempted final product). Since Bagasse emerges at sugarcane crushing stage, there is no possibility of any input-chemicals etc. having been used at that stage. Accordingly, we find merit in the contention of the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain definition of excisable goods under Section 2(d) is as under:- Excisable goods means goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as being subject to a duty of excise and includes salt. The definition itself implies that goods must be specified in the First Schedule or Second Schedule of the Central Excise Tariff Act, 1985, and the same should be subjected to a duty of excise. In the instant case, no doubt, the impugned items namely press mud and sludge are specified in the First Schedule to the Central Excise Tariff Act, 1985 against Heading No. 2303 20 00 and 2303 30 00 in general terms but they are not subject to a duty of excise, as under the rate column the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8% as it was applicable at the relevant time would arise only for final products and not for waste. This decision of the Hon ble Bombay High Court has been applied by this Bench in the case of M/s.. Sterling Biotech (supra). In the case of Vishal Pipes (supra), the Division Bench of the Tribunal has also referred to the Board s Circular No. 345/61-97-CX, dated 23-10-1997 to the effect that there should be no denial of credit even if a part of an input is contained in scrap, waste, residue etc. notwithstanding the fact that the erstwhile Rule 57D was no longer in force. 7. Further, paragraph 3.7 in Chapter 5 of the C.B.E. C. s Central Excise Manuel (sic) referred to by the learned SDR states that Cenvat credit is also admissible in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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