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TMI Blog2023 (11) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... E/11161/2018 M/s Hindalco Industries Ltd. 125/ADJ/DEM/JC-VVP/16-17 dtd. 29.12.2016 August 2015 to May 2016 1,65,99,029/- 3. E/10905/2019 M/s. Hindalco Industries Ltd. VAD-EXCUS-002-COM- 012-18-19 dtd. 30.01.2019 June 2016 to June 2017 2,26,23,144/- 2. The relevant facts that arise for consideration are that M/s Hindalco Industries Ltd. (hereinafter referred to as Appellant) are engaged in the manufacture of final products such as Copper Cathode, Continuous Cast Copper Rods etc. It was alleged that Sulphuric Acid was manufactured by the appellant from the Sulphur Dioxide gases emanating during the smelting of the Copper Concentrate. Copper Concentrate was the common input used for manufacture of the goods cleared on payment of duty such as Copper Cathodes, Continuous Cast Copper Rods etc as well as in the manufacture of exempted goods. The appellant did not maintain separate account for receipts, consumption and inventory of inputs used in the manufacture of exempted goods viz., Sulphuric Acid i.e the goods cleared to units other than 100% EOU at NIL rate of duty under the cover of Annexure-I certificates and dutiable goods i.e. goods cleared on payment of cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IN-ORIGINALdtd. 29.12.2016 wherein he confirmed the demand of Rs. 1,65,99,029 being 6% of the value of exempted Sulphuric Acid cleared during August 2015 to May 2016 alongwith interest and penalty. Aggrieved by the ORDER-IN-ORIGINAL appellant filed an appeal before the Commissioner (Appeals) who vide impugned ORDER-IN-APPEALdtd. 06.11.2017 dismissed the appeal of the Appellant. Aggrieved by the impugned order-in-appeal dtd. 06.11.2017 the appellant has filed the present Appeal No. E/11161/2018 before this Tribunal. 4. Similarly, the show cause notice dtd. 14.05.2018 was adjudicated by the Ld. Commissioner vide ORDER-IN-ORIGINALdtd. 30.01.2019 wherein he confirmed the demand for reversal of an amount of Rs. 2,26,23,144/- being 6% of the value of exempted sulphuric Acid cleared during June 2016 to June 2017 alongwith interest and penalty. Aggrieved by the impugned order the appellant have filed Appeal No. E/10905/2019. 5. Shri AnandNainawati, Learned Advocate appearing on behalf of the Appellant submits that the issue is no longer res intergra. The insertion of Explanation 1 to Rule 6(1) of the Cenvat Credit Rules, 2004 is not applicable to the present case. The circular dtd. 25.04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board Circular dtd. 25.04.2016 by issuing a fresh Circular No. 1084/05/2022-CX dtd. 07.07.2022. He placed reliance on following judgments. (i) Union of India Vs. DSCL Sugar Ltd. -2015(322)ELT 769(SC) (ii) Shamnur Sugars Ltd. Vs. CCE -2023(6)TMI 459 (iii) BalrampurChini Mills Vs. Union of India -2019(5)TMI 972 (iv) WaranaAjaraSakharUdyog Vs. CCE- 2021(9) TMI 75 CESTAT Mumbai (v) APL Apollo Tubes Ltd. Vs. CGST - 2022(11) TMI 919 CESTAT Chennai (vi) APL Apollo Tubes Ltd. Vs. CGST - 2019(7) TMI 733 CESTAT Chennai 8. He argued that once it is settled law that sulphuric acid is a by- product and no quantity of inputs or input services can be said to have been used in the manufacture of such by-product, the same cannot be an exempted product for which dutiable inputs or taxable input services have been used by the appellant in terms of Rule 6 (1) of the Cenvat Credit Rules, 2004. Thus non reversal of 6% of the value of sulphuric acid is liable to be made in the present case under Rule 6(3)(i), irrespective of the period concerned. He placed reliance on the following judgments. (i) Swadeshi Polytex Ltd. Vs. CCE- 1989 (44) ELT 794(SC) (ii) Union of India Vs. Indian Aluminiu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on such quantity of input or input service which is used in the manufacture of exempted goods or for exempted services, except in the circumstances mentioned in sub- clause (2). (2) Where a manufacturer or provider of output service avails of Cenvat credit in respect of any inputs or input services, and manufactures such final products or provides such output service which are chargeable to duty or tax as well as exempted goods or services, then, the manufacturer or provider of output service shall maintain separate accounts for receipt, consumption and invertory of input and input service meant for use in the manufacture of dutiable final products or in providing output service and the quantity of input meant for use in the manufacture of exempted goods or services and take Cenvat credit only on that quantity of input or input service which is intended for use in the manufacture of dutiable goods or in providing output service on which service tax is payable. (3) Notwithstanding anything contained in sub-rules (1) and (2), the manufacturer of goods or the provider of output service, opting not to maintain separate accounts, shall follow either of the following options as ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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