TMI Blog2018 (2) TMI 1395X X X X Extracts X X X X X X X X Extracts X X X X ..... which when present makes the oil as crude refined oil. The process of manufacturing refined vegetable oil is essentially by removing the unwanted materials that were present in the crude vegetable oil so that a refined vegetable oil can be obtained. In this process of refining, the unwanted materials are removed. Hence, we are of the considered view that the removal of unwanted materials resulting in products like gums, waxes and fatty acid with odour cannot be called as a process of manufacture of these gums, waxes and fatty acid with odour. The process of manufacture is for refined rice bran oil. Noting that the reference is to decide whether these are to be treated as waste for the purpose of exemption N/N. 89/95-CE we note though the excisability of the product itself is seriously in dispute as per the opinion expressed by us, as above, these cannot be considered as anything other than waste and as such will be covered by the exemption N/N. 89/95-CE. The appellant/assessee are eligible for exemption under the said notification - appeal returned to the regular Division Bench for decision on the points raised in the respective appeals. - Excise Appeals No. 653, 3585 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vegetable oil. The Tribunal in CCE, Jalandhar vs. A.G. Fats Ltd. 2012 (277) E.L.T. 96 (Tri. Del.) held that such products are not to be considered as waste and are as such not exempted by Notification 89/95-CE. The order of the Tribunal was challenged by the assessee in Civil appeal No. D-34641/2011 before the Hon ble Supreme Court. The civil appeals were dismissed by the Apex court 2014 (300) E.L.T. A74 (S.C.). 3. A similar dispute came before Bombay Bench of the Tribunal in Maheshwari Solvent Extraction Ltd. vs. CCE, Nagpur 2014 (299) E.L.T. 116 (Tri. Mumbai). The Tribunal observed as below :- 16. The learned Counsel fairly submitted that there are two conflicting decisions by the Tribunal s Division Benches on the same issue one by the Bangalore Bench in the case of CCE, Hyderabad v. Priyanka Refineries Ltd. - 2010 (249) E.L.T. 70 (Tri.-Bang.) and another by the Delhi Bench in the case of CCE, Jalandhar v. A.G. Flats Ltd. - 2012 (277) E.L.T. 96 (Tri.-Del.). The statutory civil appeals against these decisions were dismissed by the Division Benches of the Apex Court. It appears that even review petition was also dismissed in A.G. Flats. In the case of A.G. Flats ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Counsel mainly submitted on the following lines :- (a) the products, in question, are essentially inevitable waste, which the appellant never intended to manufacture and, as such, cannot be considered as a result of manufacturing process ; (b) without prejudice to the above, the products, in question, are clearly exempted under Notification 89/95- CE. The Revenue itself contends that wax, fatty acid and gums are waste arising during the course of refining of vegetable oil ; (c) no reliance can be placed on the order of the Tribunal in A.G. Fats (supra) as the same is devoid of legal basis and is incorrect in law. The said decision departed from many rulings of the Tribunal earlier. The reference made by the Tribunal in A.G. Fats (supra) to the decision of CCE, Hyderabad vs. Priyanka Refineries Ltd. 2010 (249) E.L.T. 70 (Tri. Bang.) is factually incorrect. The said decision of the Tribunal in Priyanka Refineries (supra) has been affirmed by the Apex court by dismissing the civil appeal Nos. 219-220 of 2010 filed by the Revenue reported in 2011 (274) E.L.T. A16 (S.C.). This was wrongly referred to as dismissal of SLP. The Tribunal noted the dismissal of civil appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court in CCE vs. Indian Aluminium Company 2006 (203) E.L.T. 3 (S.C.) held zinc dross and flux skimming are not exigible to central excise duty. Relying on the earlier decisions in Union of India vs. Indian Aluminium Company Ltd. 1995 (77) E.L.T. 268 (S.C.) and CCE, Patna vs. Tata Iron Steel Company Ltd. 2004 (165) E.L.T. 386 (S.C.), the Apex court held that the dross and skimming arising during the course of manufacture of metal cannot be subjected to excise levy only because it may have some saleable value, observing that the term manufacture implies a change; every change, however, is not a manufacture . Every change of an article may be the result of treatment, labour and manipulation. The manufacture would imply something more. There must be a transformation; a new and different article must emerge having a descriptive name, character or use (Delhi Cloth and General Mills Company Ltd. AIR 63 SC 791). The Apex court categorically held that dross do not answers the description of waste and scrap . 10. In view of the ratio adopted by the Apex court while arriving at the above decisions, the point for consideration in the present dispute is the gums, waxes and fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the unwanted materials that were present in the crude vegetable oil so that a refined vegetable oil can be obtained. In this process of refining, the unwanted materials are removed. Hence, we are of the considered view that the removal of unwanted materials resulting in products like gums, waxes and fatty acid with odour cannot be called as a process of manufacture of these gums, waxes and fatty acid with odour. The process of manufacture is for refined rice bran oil. As such, we note that these incidental products are nothing but waste arising during course of refining of rice bran oil and applying the ratio of Apex court, as discussed above, these cannot be considered as manufactured excisable goods. Noting that the reference is to decide whether these are to be treated as waste for the purpose of exemption Notification 89/95-CE we note though the excisability of the product itself is seriously in dispute as per the opinion expressed by us, as above, these cannot be considered as anything other than waste and as such will be covered by the exemption Notification No. 89/95-CE. This has been pleaded as a alternate argument by the appellant/assessee also. 12. As such in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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