TMI Blog2019 (7) TMI 1776X X X X Extracts X X X X X X X X Extracts X X X X ..... that whatever emerges from the oxides of zinc and lead during the process of smelting that is the Pyro silver, the same is cleared as it is by the appellant. There is no evidence to the contrary. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 54086 & 54160 of 2018 [DB] and Excise Appeal No. 50542 50480 50481 of 2019 [DB] - FINAL ORDER Nos. 51100-51104/2019 - Dated:- 9-7-2019 - MR. C.L. MAHAR, MEMBER (TECHNICAL) AND MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Ms. Sukriti Das, Advocate for the Appellant Mr. H.C. Saini, Authorised Representative for the Respondent ORDER Present order disposes of 5 appeals having common Order-in-Appeal as detailed below:- Appeal No. E/54086/2018 E/50480/2019 E/50542/2019 E/50481/2019 E/54160/2018 Order-in- Appeal No. 82-86 (SRM)CE/JDR/2018-19 dated 09.08.2018 Order-in- Original No. 03/1999-CE (Demand) dated 08.01.1999 84/1999-CE (Demand) dated 31.08.1999 118 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest at the appropriate rates and the proportionate penalties. The entire proposal was initially confirmed vide respective Orders in Original, as mentioned in the table above. Being aggrieved, 5 appeals were preferred, which have been disposed of by the common Order-in-Appeal No.82-86 / JVR/18-19 dated 09.08.2018. By the said order, the appeals have been rejected. Being aggrieved, the assessee-appellant are before this Tribunal. 4. We have heard Ms. Sukriti Das, ld. Counsel for the appellants and Mr. H.C. Saini, Ld. D.R. for the Department. 5. It is submitted on behalf of the appellant that the silver as is cleared by the appellants is merely produced as a by-product during the process of extraction of zinc and lead from the respective concentrates/poles. She has explained the process of the extraction involving various stages to impress upon that the impugned silver is an unavoidable product appearing during the said process. Hence, the production thereof cannot be said to be the manufacture, as such, the same is absolutely out of the purview of Rule 57 CC of the Central Excise Rules. It is also impressed upon that it being a by-product no inputs are attributable for ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... called sinter. The hot sinter is charged into the Imperial Smelting Furnace, wherein various reactions take place. The oxides are reduced to lead bullion and zinc bullion. The zinc bullion (also known as Furnace Zinc), being light, stays at the top of the Furnace and is obtained by the process of vaporization and condensation and is taken to the Zinc Refinery[the said fact is recorded in the OIO dated 29.10.1999]. 7.3 The molten lead bullion (with impurities, viz. copper, silver, antimony etc.), being heavy, remains at the bottom of the Imperial Smelting Furnace and is taken to the Lead Refinery to obtain Lead Ingots. During the process of refining, Rich Silver Crust emerges as a by-product which contains approx. 65-70% Lead, 10-15% Zinc, 5-7% Copper, 4-5% Silver and certain other impurities. This is further processed to recover Zinc and Lead, thus, leaving Silver (a by-product) during the elimination process. This process has been elaborately discussed at pg. 57 of the OIO No. 118/1999-CE (Demand) dated 29.10.1999of the Appeal Paper Book. 8. The perusal of this procedure makes it abundantly clear that this pyro silver is being extracted as an unavoidable remnant which appar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 57D(1) of the Rules that credit shall not be denied on the ground that part of the inputs is contained in a by-product. It is also not disputed that by-product in the present matter, namely, Sulphur Di-oxide gas is taken to Sulphuric Acid Plant for converting the same into Sulphuric Acid. We agree with the learned SDR that Sulphuric Acid has been obtained by the appellants as a conscious act. However, it cannot be claimed by the Revenue that any part of the inputs i.e. LDO has gone into manufacture of Sulphuric Acid. For the purpose of applying the provisions of Rule 57C of the Central Excise Rules, 1944, it is pre-requisite that the inputs are used in the manufacture of products, which are exempted from the whole of the duty of Excise or is chargeable to nil rate of duty. The mere fact of using Sulphur Di-oxide for making Sulphuric Acid will not tantamount to using the modvatable inputs in the manufacture of exempted products i.e. Sulphuric Acid. This was the view expressed by the Tribunal in the case of Hi-tech Carbon (supra) where the appellants were availing Modvat Credit of the duty in respect of carbon black feed stock for the manufacture of carbon black; that during the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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