TMI Blog2008 (9) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... air is not a manufactured product. Hence, question of reversal of credit of duty on input as is used productions of the said oxygen gas does not arise. - E/1152/2007 - A/710/2008-WZB/CII/(SMB), - Dated:- 26-9-2008 - Shri M.V. Ravindran, Member (J) Shri T. Tiju, JDR, for the Appellant. Written submission, by the Respondent. [Order]. - This appeal is filed by the revenue against the impugned order, vide which the ld. Commissioner (Appeals) has upheld the order-in-original, which dropped the proceedings initiated against the respondents. 2. The respondent is absent and has requested to decide the issue on merits. 3. Heard the ld. JDR and perused the records. 4. The relevant fact that arise for consideration are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gen as well Oxygen. The Nitrogen gas is dutiable whereas the Oxygen gas is exempted. As per the provisions of Rule 6 of Cenvat Credit Rules, 2002, credit shall not be allowed on such quantity of input which is used in the manufacture of exempted goods. Therefore, a SCN was issued to the Respondent on 7-7-2004 for recovery of Cenvat credit of Rs. 62,515/- and for imposition of penalty and for recovery of interest. The Asst. Commissioner, Central Excise Customs, Aurangabad-II Division adjudicated the case vide OIO No. 55/DMD/2005 dated 30-11-2005 wherein he held that there is no sale of Oxygen gas in this case, therefore, Rule 6 of the Cenvat Credit Rules, 2002, will not be applicable in this case. He relied upon the judgment of CESTAT in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it the respondent is availing Cenvat credit. The nitrogen gas so manufactured is dutiable. During the process of manufacture of nitrogen gas, the oxygen gas is allowed to escape into the atmosphere and no duty is being paid as per Board's clarification in CBEC Circular No. 246/80/96-CX, dated 1-10-96. The revenue has filed appeal on the grounds that Cenvat credit availed on liquid nitrogen, which is used in the production of oxygen, is not admissible as per Rule 12 of Cenvat Credit Rules, 2002. I find that the view taken in the latest decision reported in 2004 (166) E.L.T. 254 (Tri.-Delhi) in the case of CCE, Delhi v. BOC India Ltd., that gases lost during the manufacturing process to be considered as used in or in relation to manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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