TMI Blog2018 (12) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... is a by-product, it was incumbent upon the original authority to examine that as a prerequisite for determination of liability - the validity of the claim of central excise authorities that liability should be confirmed. The original authority is directed to examine the scope of the applicability of the exclusion from rule 6 of CENVAT Credit Rules, 2002 on the ‘lean gas’ claimed to be a by-product in the manufacturing process of the respondent - appeal allowed by way of remand. - APPEAL NO: E/579/2009, CROSS-OBJECTION NO: E/CO-48/2009 - A/88159/2018 - Dated:- 20-12-2018 - Shri C J Mathew, Member (Technical) And Shri Ajay Sharma, Member (Judicial) Shri Hitesh Shah, Commissioner (AR) for appellant Shri Sanjay Dwivedi, Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndantly clear that the impugned proceedings, based on the emergence of the exempted product cleared by the respondent, should have succeeded as the obligation of the respondent to maintain separate accounts of the utilisation of inputs in the exempted product was not fulfilled. It is his contention that, instead of doing so, the adjudicating authority accorded credence to the claim of the assessee that the issue had been settled by the decision of the Hon ble Supreme Court in Commissioner of Central Excise v. Gas Authority of India Ltd [2008 (232) ELT 7 (SC)] without ascertaining whether lean gas was a final product. It was pointed out that, in the said decision, the appeal of Revenue was dismissed on the ground that the show cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there was no cause to examine the applicability of circular no. B-4/7/2000-TRU dated 3 April 2000 in which Central Board of Excise Customs has negated the scope for invoking exclusion from eligibility for CENVAT credit merely because the inputs had been utilised in waste or by-products. As a consequence, the nature of the exempted lean gas has not been dealt with even though covered by the show cause notices. In re Gas Authority of India Ltd , the Hon ble Supreme Court had affirmed the decision of the Tribunal thus 5. Therefore, the short question which arises for determination before this Court is whether Lean Gas was a by-product or a final product. If it is a by-product then the assessee would be entitled to the benefit of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, then there is no question of the assessee disputing that statement made in the show cause notice. 8. We express no opinion on the merits of the question framed hereinabove. We are dismissing these appeals only on the facts of the present case and only on the ground that there is no allegation made in the show cause notice that Lean Gas is the final product. 6. As the show cause notices in the impugned proceedings, except for the one pertaining to September 1998, had sought to invoke the demands by disputing the claim of the assessee that lean gas is a by-product, it was incumbent upon the original authority to examine that as a prerequisite for determination of liability. Having failed to do so, we are not in a position to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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