TMI Blog2023 (9) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... dvat credit would get settled in accordance with that rule and there is no scope to apply the provisions of Rule 57CC for the same set of transactions. Hon ble Supreme Court in the case of UNION OF INDIA VERSUS AHMEDABAD ELECTRICITY CO. LTD. [ 2003 (10) TMI 47 - SUPREME COURT] has held that since excise duty is an incidence of manufacture therefore it is essential that the product in question should have gone through a process of manufacture. The issue is no more res integra and decided in favour of the Appellant - Appeal allowed. - HON BLE MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Atul Gupta, Advocate Shri Prakhar Shukla, Advocate for the Appellant Shri Santosh Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accounts for inputs commonly used in the manufacture of dutiable and exempted final products. It is alleged that the sludge falls under Chapter sub-heading 3824.90 and exempted under Notification No.76/86 dated 10.02.1986. Hence, demand has been raised under rule 6 r/w rule 14 of Cenvat Credit Rules r/w section 11A of Central Excise Act along with interest under section 11AB of the Act. Penalty was also imposed u/r 15 of Cenvat Credit Rules in the Order-in-Original. However, such penalty was set aside vide impugned order-in-Appeal. 3. Learned Advocate appearing on behalf of the Appellant submits that the issue is no more res integra and is covered by the decision of the Tribunal in the Appellant s own case on the same set of facts f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order and prayed that the appeal filed by the Appellant being devoid of merits may be dismissed. 7. Heard both sides and perused the appeal records. 8. We find that the issue in the present appeal as to whether Appellant-Assessee who is manufacturer of paper and paper board is required to reverse an amount @ 8%/10% on the value of sludge/waste under the provisions of sub-rule (3) of Rule 6 of Cenvat Credit Rules, 2004 inevitably arising out during the manufacture of paper and paper board. We find that in the Appellant s own case C.C.E., Meerut-I vs. Star Paper Mills Ltd. 2003 (158) E.L.T. 846 (Tri.-Del.) Tribunal rejected the Department s appeal by holding as under:- This appeal of the Revenue is directed against the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss as a residue or waste. Therefore, such product would have to be treated as waste or by-product and not a final product, as claimed by Revenue. This situation would be therefore covered under Rule 57D(1). Hence there can be no question of resorting to provisions of Rule 57CC for the purpose of charging 8% amount, as proposed. When the Waste Sludge is squarely covered by the provisions of Rule 57D(1), Modvat credit would get settled in accordance with that rule and there is no scope to apply the provisions of Rule 57CC for the same set of transactions. Otherwise it would lead to a chaotic situation, whereby one rule permits retention of credit, by applying another rule the recovery is being enforced. All the rules have to be read in a ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.T. 10 (Bom.) wherein it was held that the opinion expressed in the interim order of Hon ble Allahabad High Court are prima facie in nature which was passed at the stage of seeking interim relief. Further, the Hon ble Bombay High Court passed the final order and such order, since then, has been upheld by the Hon ble Supreme Court in the SLP (C) No.29348 of 2015, SLP(C) No.17091 of 2017 and Civil Appeal No.17476 of 2017 filed by the department as these SLPs and Civil Appeal are dismissed. 10. We find that the issue is no more res integra and decided in favour of the Appellant through Final Order No.70670/2019 dated 26.03.2019 by this Tribunal in Appellant s own case. By relying upon the precedent decisions, the appeal filed by the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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