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TMI Blog2019 (7) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 during the period from March 2015 to June 2017 as they have not maintained separate accounts for use of inputs in the manufacture of dutiable and exempted final products (Zinc scrap cleared by them on consideration). Hence show cause notice was issued proposing to demand an amount equal to 6% of the value of the zinc scarp (exempted goods cleared by them) along with interest and also for imposing penalties. After due process of law, the original authority confirmed the demand, interest and imposed penalty. In appeal, the Commissioner (Appeals) upheld the demand, interest however reduced the penalty to 10%. 2. The Ld. Counsel Shri R.S. Sharma appeared and argued the matter on behalf of the appellant. He submitted that appellant is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legal and proper. 4. Heard both sides. 5. The issue is whether appellants have to pay an amount of 6% of the value of the zinc scrap cleared by them. The department has relied upon Explanation (1) introduced w.e.f. 01.03.2015 to demand the duty raised in the SCN. It has to be seen that though the said Explanation puts forward a deeming provision that non-excisable goods cleared by payment of consideration are also to be considered as exempted goods, there is no corresponding amendment made in sub-rule (1) of Rule 6 so that the goods that emerged out of process of manufacture falling in clause (1) are also to be considered as exempted goods. As per settled decisions, the goods which are not consciously manufactured by the appellants and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under sub-rule (1) of Rule 6 of Cenvat Credit Rules, 2004 w.e.f. 01.03.2015 there was an obligation on the part of the manufacturer to pay amount under sub-rule 3 of said Rule 6 at a fixed percentage of the value of nonexcisable goods removed when Cenvat Credit on input and input services were availed and such inputs and input services were used in the manufacture of excisable as well as exempted goods including non-excisable goods. Therefore proceedings were initiated against the respondent for recovery of around Rs. 44.00 Lakhs. On perusal of record I note that the issue is covered by precedent decision in respondent's own case in respect of their another unit through Final Order No.70801/2019 dated 18.04.2019. It was held in the said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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