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TMI Blog2020 (12) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent] has been allowed and the order dated December 15, 2017 passed by the Joint Commissioner has been set aside. It needs to be noted that the Joint Commissioner had confirmed the demand raised under rule 6(3) of the CENVAT Credit Rules 2004 [Credit Rules] for clearance of sulphuric acid from the factory of the respondent during the period from December, 2015 to March, 2016 for Rs. 72,93,931/. 2. The respondent is engaged, inter alia, in the manufacture of lead and zinc and is also availing CENVAT credit of duty paid on inputs and input services in terms of the provisions of the Credit Rules prevailing during the relevant period from December 2015 to March 2016. 3. The ore mined from the mine contains zinc and lead, along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lphuric acid and that all inputs and input services were consumed in the manufacture of dutiable final products; rule 6(3) of the Credit rules was not applicable in case of a by-product/waste emerging during the manufacturing process; and the issue raised in the show cause notice had been settled in favour of the respondent, in its own case, by the Supreme Cour in Union of India vs. Hindustan Zinc Ltd. [2014 (303) ELT 321(SC)], and also in cases of other assessees. 8. The relevant portion of the judgement of Supreme Court in Hindustan Zinc is reproduced below: "3. In all these appeals filed by the Revenue, it has taken the position with the common contention as to whether the Respondents are liable to pay 8% excise duty as an amount unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty, then the inputs on which Modvat/Cenvat Credit are claimed used in the manufacture of the aforesaid final products will attract the rigor of Rule 57CC/Rule 6 of the Modvat/Cenvat Credit Rules. 23. In this very direction, his further submission was that the term "by-products" is not defined either in the Act or in the Rules. Dictionary meanings cannot be resorted to in this case as it would then mean that final products would be treated as by-products defeating the plain language of Rule 57CC and Rule 6 which are applicable to final products. The only test is "excisability of goods manufactured or produced" and only if the requirements of this test are satisfied, the goods can be 'final products' and never 'by-products& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable. 26. Furthermore, the provisions of Rule 57CC cannot be read in isolation. In order to understand the scheme of Modvat Credit contained in this Rule, a combined reading of Rule 57A, 57B and 57D alongwith Rule 57CC becomes inevitable. We have already reproduced Rule 57D above. It can be easily discerned from a combined reading of the aforesaid provisions that the terms used are 'inputs', 'final products', 'by-product', 'waste products' etc. We are of the opinion that these terms have been used taking into account commercial reality in trade. In that context when we scan through Rule 57 CC, reference to final product being manufactured with the same common inputs becomes understandable. This Rule did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether by product namely sulphuric acid emerges in appellant factory is covered under the definition of 'excisable goods' as per provisions of Section 2(d) of CEA, 1944, (ii) whether the 'sulphuric acid' qualifies as exempted goods under Rule 2(d) of Cenvat Credit Rules, 2004 and whether Rule 6 of the Cenvat Credit Rules, 2004 is applicable in the instant case or not? ******* As per the above definition of exempted goods, goods should be excisable goods. In this regard, the adjudicating authority observed in OIO that in the budget of 2018, the definition of 'excisable goods' in clause (d) of Section 2 of the Central Excise Act, 1944 was amended by adding an explanation that for the purposes of this clause, "goods" include any article, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt have separate plant and process to manufactured the Sulphuric acid. In this regard, I observe that the Hon'ble Supreme Court in the above cited case and after examining the manufacture process of the appellant held that Sulphuric acid is a by-product...." I therefore find that there is no dispute left regarding treating the Sulphuric acid as a by-product, hence finding of adjudicating authority on this account is not correct and same is set aside." (emphasis supplied) 11. What is important to note is that for the demands raised under rule 6(3)(i) of the Credit Rules in respect of sulphuric acid for the earlier period, the Suprement Court in Hindustan Zinc held that sulphuric acid is a by- product and there is no necessity to mainta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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