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TMI Blog2023 (9) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinate Bench of this Court in Tax Appeal No. 196 of 2023 vide order dated 31.03.2013 assigned the following reasons while dismissing the Tax Appeal: "5. Noticeably, substantial questions of law which were subject matter in Tax Appeal No. 219 of 2022 and those framed in the present appeal, are same and nearly identical. In the Tax Appeal No. 219 of 2022 , the Division Bench of this court held that the question whether the LPG is by-product or not, has come an academic issue in view of the decisions of the supreme court in CCE vs. National Organic Chemical Industries Limited [2008 (232) ELT 193 (SC)] and Swadeshi Polytex Ltd. vs. CCE [1989 (44) ELT 794 (SC)]. 5.1 It would be relevant to extract the relevant discussion from judgment dated 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of Mother Liquor could be averted. In the manufacturing process adopted by the assessee, it is not possible to manufacture Gelatin without Mother Liquor coming into existence. .................... When the entire quantity of input is used in the manufacture of Gelatin, the question of maintaining separate accounts or of paying a percentage of the total price of the exempted goods would not arise. In the peculiar facts of the present case, sub-rule (1) of Rule 6, itself would not come into play inasmuch the manufacturer does not deliberately use any quantity of the inputs, viz. Hydrochloric Acid for manufacturing Mother Liquor, the entire Hydrochloric Acid is used in the manufacture of Gelatin. Thus, when no input is specifically used f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCR on the ground that the exempt product was a by-product, but has done so by observing that the assessee could not have used a lesser quantity of inputs and inputs for manufacture of its dutiable final product. 15. It is further submitted that the Apex Court has, in the case of in the case of CCE vs. National Organic Chemical Industries Limited, 2008 (232) ELT 193 (SC) held that if the dutiable final product could not have been manufactured using a lesser quantity of inputs, then the entire input must be attributed to having been used in the manufacture of the said dutiable final product, even if some other exempt final product emerges, inevitably. This is also the ratio of the judgment of the Apex Court in the case of Swadeshi Polyte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it held that the appellants were not entitled to a part of the credit of duty since ethylene glycol when it interacts with DMT also gives rise to methanol. This construction would frustrate the object of exemption if something which evidently arises out of the interaction. Even prior to amendment to notification No. 201/79 with effect from 11-4-87, the only situation where the credit of the duty paid on the inputs could be denied was only where the final products were wholly exempt from the duty of excise or chargeable to nil rate of duty. In the present case, the excisable goods, namely, polyester fibre were not wholly exempt from duty nor chargeable to nil rate of duty. It cannot be read in the notification that the notification would no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Service Tax Appellate Tribunal, Mumbai in respect of similar claim of refund by the very company in relation to the period from April, 2010 to March, 2011, to set aside the Orderin- Original which rejected the refund request. 6. Learned advocate for the appellant when confronted with the decision of the Division Bench of this court of the said Tax Appeal No. 219 of 2022 involving the same issue and questions, was entirely at his receiving end and was not in a position to dispute the position of law emerging from the said decision, which holds the field. 6.1 In view of the above reasons and discussion, no question of law much less any substantial question of law can be said to be arising. The proposed substantial questions of law ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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