TMI Blog2018 (3) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... back to the adjudicating authority with some directions which was contested by Revenue before the Hon ble High Court of Andhra Pradesh and their Lordships had remanded the matter back to the adjudicating authority to consider the issued based upon the available evidences on record. By the impugned order, the adjudicating authority has considered the available evidence on records and based upon various statements given by the purchasers of the appellant s goods, he felt that distilled methanol has been cleared by the appellant would attract central excise duty at appropriate rate. 4. Undisputedly, appellant herein are manufacturers of bulk drugs and procures methanol for manufacturing of bulk drugs. After substantial use of the said methanol in manufacturing of bulk drugs, appellant herein purifies methanol by distillation process and the same is cleared as spent methanol, adjudicating authority has held that the spent methanol cleared by the appellant being of 90% purity and there has been brought into existence by way of process of distillation and put to use by the purchasers for manufacturing bulk intermediates, paints, thinners etc. and the goods would be excisable. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any liability. The Commissioner (Appeals), by order dated 29-11-2003, adjudicated the matter and levied duty, penalty and interest under Sections 11A, 11AB and 11AC of the Act and under Rules 9(2) and 209A of the Rules. The Commissioner (Appeals), however, set aside the order in original relying on the decision in M/s. Vorin Laboratories Ltd., Hyderabad vide Order-in-Appeal Nos. 78 79/2003 (H-I) C.E. The appeal filed by the Revenue before the CESTAT was, however, allowed and the matter was remanded. After such remand, the Commissioner (Appeals), by order dated 5-4-2007, held that spent solvent is not a product excisable to duty and accordingly rejected the department s contention. In the second round of litigation before the CESTAT, the Revenue was again unsuccessful. 4. The learned CESTAT, in the common order, observed that, earlier in the case of the APL, it was held that spent solvent is not excisable to duty and, accordingly, rejected the appeals. For ready reference, we quote the following from the impugned order. We have considered the submissions made at length by both sides and perused the records. We find that in the case of the respondent i.e., CCE, Hyderaba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, respectfully following the same, we find that the issue being no more res integra, the appeals filed by the Revenue are devoid of merits. All the appeals are rejected and the impugned orders are upheld. 5. The Standing Counsel for Customs Central Excise submits that the spent solvent undergoes a process of purification and treatment in the reactors and, therefore, the marketable spent solvent attracts duty. According the Counsel, as per Note-11 to Chapter-29 of the Central Excise Tariff Act, 1985, when once any product in relation to the products thereunder is subjected to a treatment so as to render it a marketable product, the assessee is liable to pay the duty. 6. The Counsel for APL relies on Indian Oil Corporation Ltd. v. Collector of Central Excise, Baroda - 2006 (202) E.L.T. 37 (S.C.) and CCE, Hyderabad v. Novapan Industries Ltd. - 2007 (209) E.L.T. 161 (S.C.) and submits thast when the issue of excisability of spent solvent is already decided in the earlier cases in respect of the same assessee or when a similar question is decided by the Commissioner (Appeals) or the CESTAT, the department, having not filed an appeal against the earlier judgment, cannot rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.T. 142 (S.C.), wherein it has been held that if no appeal is filed against an earlier order of the earlier appeal involving the identical issue was not pressed by the revenue, the revenue is not entitled to press the other appeals involving the same question. In Birla Corporation Ltd., this Court observed as follows : In the instant case the same question arises for consideration and the facts are almost identical. We cannot permit the Revenue to take a different stand in this case. The earlier appeal involving identical issue was not pressed and was, therefore, dismissed. The respondent having taken a conscious decision to accept the principles laid down in Pepsico India Holdings Ltd., 2001 (130) E.L.T. 193, cannot be permitted to take the opposite stand in this case. If we were to permit them to do so, the law will be in a state of confusion and will place the authorities as well as the assesses in a quandary. Birla Corporation Ltd. (supra) is being followed consistently. Since the point involved in the present case is identical to the point involved in Hindustan Petroleum Ltd., (supra) and the department having accepted the principle laid down in Hindustan Petroleum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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