TMI Blog2023 (1) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... From the above decision of this tribunal being the issue in the above case and in the present case is identical, the ratio of the above decision is directly applicable in the present case hence, the issue is no longer res-integra. Appeal allowed. - Excise Appeal No.10137 of 2013 - Final Order No. A/10008/2023 - Dated:- 5-1-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU , MEMBER (TECHNICAL) Shri J.C. Patel Shri Rahul Gajera, (Advocates) for the Appellant Shri. Tara Prakash, Assistant Commissioner (AR) for the Respondent ORDER The issue involved in the present case is that whether the benefit of captive consumption exemption notification no.67/95-CE dated 16.03.1995 can be denied to the quantity of Clinker which was used within the factory to manufacture of the part of the cement which was cleared against International competitive bidding with duty exemption under Serial No. 91 of Notification No.6/2006-CE dated 01.03.2006.. 02. Shri J.C. Patel, learned counsel appearing on behalf of the appellant at the outset submits that this issue has been considered by this tribunal in the appellant s own case and also other judgments. He placed re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Special Importance Act: Provided that nothing contained in this notification shall apply to inputs used in or in relation to the manufacture of final products which are exempt from the whole of the duty of excise or additional duty of excise leviable thereon or are chargeable to nil rate of duty, other than those goods which are cleared :- i. to a unit in a Special Economic Zone, or ii. to a hundred per cent Export Oriented Undertaking or iii. to a unit in an Electronic Hardware Technology Park, or iv. to a unit in a Software Technology Park, or v. under notification No. 108/95-CE, dated the 28th August, 1995, or vi. by a manufacturer of dutiable and exempted final products, after discharging the obligation prescribed in rule 6 of the CENVAT Credit Rules, 2001. Table Description of inputs Description of final products (1) (2) All goods falling under the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), other than light diesel oil, high speed diesel oil and motor spirit, commonly kn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Rule 6(6)(vii) of the CENVAT Credit Rules 2004. This sub-rule reads as follows:- (6) The provisions of sub-rules (1), (2), (3) and (4) shall not be applicable in case the excisable goods removed without payment of duty are either (i) -------------------------------- (ii) ------------------------------ (iii) ----------------------------- (iv) ------------------------------- (v) ---------------------------------- (vi) -------------------------------- (vii) all goods which are exempt from the duties of customs leviable under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and the additional duty leviable under Section 3 of the said Customs Tariff Act when imported into India and supplied against International Competitive Bidding in terms of Notification No.6/2002-Central Excise dated the 1st March, 2002 or Notification No.6/2006-Central Excise dated the 1st March, 2006, as the case may be. From the above provision, it is clear that the appellant did not have any liability under sub-rule (2) to maintain separate accounts for receipt, consumption and inventory of inputs meant for use in the manufacture of dutiable final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final products as well as dutiable final products. In other words, where the manufacturer manufactures both dutiable and exempted final products and uses the inputs in question in the manufacture of the exempted final products, he is entitled to the benefit of exemption from payment of duty on such inputs in terms of the opening paragraph of the Notification. This right is not hit by the opening portion of the proviso to the Notification as the manufacturer is squarely covered by the exception carved out of the proviso vide clause (vi) under the proviso. The Department, it appears, would like to drive the assessee out of the purview of this exception on the ground that the latter had not discharged the obligation prescribed in Rule 6 of the CENVAT Credit Rules 2004. We have already held that the assessee did not have any liability under sub-rules (1) to (4) of Rule 6 inasmuch as these sub-rules were not applicable, by virtue of sub-rule (6), to the assessee who were clearing their exempted final products against international competitive bidding in terms of Notification No.6/2006-CE ibid. In other words, a conjoint reading of sub-rule (6) of Rule 6 of the CENVAT Credit Rules 2004 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (iv)-------------------------- (v)-------------------------- (vi)------------------------- (vii) all goods which are exempt from the duties of customs leviable under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and the additional duty leviable under Section 3 of the said Customs Tariff Act when imported into India and supplied against International Competitive Bidding in terms of Notification No. 6/2002-Central Excise, dated the 1st March, 2002 or Notification No. 6/2006-Central Excise, dated the 1st March, 2006, as the case may be. From the above provision, it is clear that the appellant did not have any liability under sub-rule (2) to maintain separate accounts for receipt, consumption and inventory of inputs meant for use in the manufacture of dutiable final products and inputs meant for use in the manufacture of exempted goods, nor did the assessee have alternative liability under sub-rule (3) to pay an amount equal to 10% of the value of the exempted goods. This is because their final products were cleared against international competitive bidding in terms of Notification No. 6/2006-C.E. ibid. 5. Against the above backdrop, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not hit by the opening portion of the proviso to the Notification as the manufacturer is squarely covered by the exception carved out of the proviso vide clause (vi) under the proviso. The Department, it appears, would like to drive the assessee out of the purview of this exception on the ground that the latter had not discharged the obligation prescribed in Rule 6 of the CENVAT Credit Rules, 2004. We have already held that the assessee did not have any liability under sub-rules (1) to (4) of Rule 6 inasmuch as these sub-rules were not applicable, by virtue of sub-rule (6), to the assessee who were clearing their exempted final products against international competitive bidding in terms of Notification No. 6/2006-C.E. ibid. In other words, a conjoint reading of sub-rule (6) of Rule 6 of the CENVAT Credit Rules, 2004 and clause (vi) under the proviso to Notification No. 67/95-C.E. ibid would show that the assessees claim for exemption from payment of duty on copper wire under the Notification was not hit by the opening portion of the proviso to the Notification. 7. In the result, the assessee was not liable to pay CE duty on copper wire manufactured and captively used in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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