TMI Blog2019 (2) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... ded against Revenue. - APPEAL NO: E/88947/2019 - A/85343/2019 - Dated:- 21-2-2019 - Shri Ajay Sharma, Member (Judicial) Appellant: Shri N.N. Prabhudesai, Assistant Commissioner (AR) Respondent: Shri V.B. Gaikwad, Advocate ORDER The present appeal has been filed by the Revenue from the impugned order dated 23.05.2018 passed by the Commissioner (Appeals-II) Central Tax, Pune by which the learned Commissioner allowed the appeal filed by the respondent herein i.e. the assesee. This appeal is limited to the extent of setting aside the demand of ₹ 29,47,984/- with interest and penalty. 2. The issue involved in the instant matter is the demand of Central Excise duty on the exempted goods i.e. Bagasse, pressmud and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod in issue. Accodingly, a show cause notice was issued to the Assesee and the Assistant Commissioner, CGST, Baramati vide order-in-original dated 22.12.2017 confirmed the total demand for an amount of ₹ 56,66,177/- with interest and penalty. On appeal filed by the Assesee the learned Commissioner vide impugned order dated 23.05.2018 allowed the appeal filed by the Assesee. 4. I have heard learned Authorised Representative on behalf of Revenue. None appeared on behalf of respondent-assesee and a written submission was filed on its behalf. Learned Authorised Representative submitted that the Assesee had neither maintained separate record of inputs and input services as provided in Rule 6 (2) nor paid an amount equal to 6% of the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 280-CESTAT-MUM (v) Sahakar Shiromani Vasantrao Kale SSK Ltd. Vs. CCE, Pune- III - 2017-TIOL-4127- CESTAT-MUM (vi) M/s. ECO Cane Sugar Energy Ltd. Others etc. Vs. CCE, Kolhapur - 2017 (12) TMI 950- CESTAT-MUMBAI (vii) M/s Shivratna Udyog Ltd. Others etc. Vs. Commissioner of Customs Central Excise - 2017 (9) TMI 985- CESTAT MUMBAI (viii) Shree Narmada Khand Udyog, Sahakari Mandli Ltd. Vs. Commissioner (Appeals) - 2018 (8) TMI 1075 - CESTAT AHMEDABAD (ix) M/s Simbhaoli Sugar Ltd. Vs. CCE, Noida - 2018 (8) TMI 160 CESTAT ALLAHABAD (x) M/s Triveni Engineering Industries Ltd. Vs. C.C. C.E. S.T. Noida - 2018 (8) TMI 6 - CESTAT ALLAHABAD The Hon ble Supreme Court in the matter of DSCL Sugar Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and clause (h), respectively of Rule 2 include non-excisable goods, which is cleared for consideration from factory, hence Rule 6(1) is applicable to the by-product bagasse, pressmud and composed fertilizer. Clause (d) and (h) of the said Rule 2 reads as follows:- (d) exempted goods means excisable goods which are exempt from the whole of the duty of excise leviable thereon, and includes goods which are chargeable to Nil rate of duty; (h) final products means excisable goods manufactured or produced from input, or using input service; The Hon'ble Supreme Court s decision in the matter of DSCL Sugar Ltd. (supra) has clearly laid down that Bagasse is agricultural waste of sugarcane and the waste and residue of agri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g during the course of manufacture of final product, Rule 57CC is not applicable. It was also held in the said judgment that liability under Rule 57CC arises only for final product and not for waste the Hon ble High Court also considered the provisions of Rule 6 of Cenvat Credit Rules 2004. The similar issue was considered in the case of Union of India vs. Hindustan Zinc Ltd. (supra) wherein it was held that the Sulfuric Acid which is generated as a by product recovery of 8% under Rule 6 of Cenvat Credit Rules 2004 is not correct. In view of the above judgments the issue whether Rule 6(3) is applicable in case of removal of non-dutiable waste or by product is settled in favour of the assessee. As regard the submissions made by Ld. ARs that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in or in relation to the manufacture of final products, and whether directly or indirectly . From the above para, it is clear that if any input is contained in waste by product or goods the cenvat credit shall not be denied. If rule 6(3) is made applicable in these goods this clarification will stand redundant. If legislator has intention even to apply Rule 6(3) on waste or by-product, refuse then either this para should have been amended or omitted. Since this clarification is still in force the Cenvat credit either by way of Rule 6(3) or otherwise cannot be denied. As per my above discussion, I am of the considered view that in case of removal of waste or by-product Rule 6(3) has no application. Accordingly, the impugned orders ..... X X X X Extracts X X X X X X X X Extracts X X X X
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