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2016 (12) TMI 652 - CESTAT KOLKATA

2016 (12) TMI 652 - CESTAT KOLKATA - TMI - Non-maintenance of proper records - non-payment of amount equal to appropriate rate of value of exempted goods u/r 6(3) of Cenvat Credit Rules, 2004 - Held that: - I find that the issue is settled in view of the decision of Hon’ble High Court of Bombay in the case of M/s. Hindalco Industries Ltd. vs. Union of India [2014 (12) TMI 657 - BOMBAY HIGH COURT], where it was held that in the present case it could not be pointed out as to whether any process in .....

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e Cenvat Rules, 2004, shall have no application. - Respectfully following the judgment and the Board's Circular No. 1027/15/2016-CX dated 25.04.2016, the appeals filed by the appellant Revenue are rejected. - Appeal Nos. E/75354/14 & E/75355/14 - Order No. FO/A/76177-78/16 - Dated:- 9-11-2016 - Shri P. K. Choudhary, Member (Judicial) Shri S.Mukhopadhyay, Suptd.(AR) for the Appellant Shri Amit Kumar, Advocate for the Respondent ORDER Per Shri P. K. Choudhary 1. Since both these appeals are ar .....

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of said goods in their ER-1 Returns during the period 2006-07 to 2010-2011. It is the case of the department that the production/clearance and value of these goods i.e. bagasse, press-mud, bio-compost (Jaivik Khad) were not reflected in the ER-1 Returns nor the respondents paid an amount equal to appropriate rate of exempted goods despite availment of cenvat credit on common inputs and input services during the aforesaid period, as per Rule 6(2) of Cenvat Credit Rules, 2004. The respondents had .....

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ELT 397] b) Commissioner of Central Excise vs. M/s. Eid Parry Ltd. [2015(317) E.L.T. A 158 (S.C.)] c) Commissioner of Central Excise vs. Titawi Sugar Complex [ 2003(152) ELT 21(SC)]. 3. Ld. AR appearing for the appellant revenue reiterated the grounds of appeal. Ld. Counsel appearing on behalf of the repondent companies relied on the Supreme Court s decision in Union of India vs. DSCL Sugar Ltd. [ 2015(322) E.L.T.769 (S.C)]. and Circular No.1027/15/2016-CX dated 25.04.2016 where in the departmen .....

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facturer of sugarcane and molasses falling under Chapter sub-heading 1701 11 90 and 1703 10 00 respectively, of the First Schedule to the Central Excise Tariff Act, 1985. In the process of manufacture of sugar, sugarcane is crushed, its juice is extracted and Bagasse emerges as residue/waste of sugarcane. 4. It is not in dispute that Bagasse is otherwise classified under Chapter sub-heading No. 2303 20 00 of the First Schedule to the Central Excise Tariff Act, 1985 and attracts nil rate of duty. .....

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s holding that Bagasse being a waste and not a manufactured product, no duty is payable thereupon. For arriving at this conclusion, the High Court also have relied upon the judgment of this Court in Balrampur Chini Mills Ltd. in C.A. No. 2791 of 2005 decided on 21-7-2010 [2015 (320) E.L.T. A258 (S.C.)]. 6. The aforesaid judgment was pronounced by this Court related to the period before 2008. In the year 2008 there was an amendment in Section 2(d) as well as in Section 2(f) of the Act which defin .....

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d to be marketable. 7. As per the aforesaid explanation, goods would now include any article, material or substance capable of being bought or sold for consideration and as such goods shall be deemed to be marketable. Thus, it introduce the deeming fiction by which certain kind of goods are treated as marketable and thus excisable. 8. However, before the aforesaid fiction is to be applied, it is necessary that the process should fall within the definition of manufacture as contained in Section 2 .....

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