TMI Blog2024 (1) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... 8th February, 2015 is accordingly answered in the negative, in favour of the assessee and against the revenue. By following the ruling of Hon ble Bombay High Court, it is held that the impugned order-in-appeal is not sustainable. Appeal allowed. - HON BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) And HON BLE MR. ANIL G. SHAKKARWAR, MEMBER (TECHNICAL) Shri Abhay P. Kolte, Advocate, for the Appellant Shri Sunil Kumar Katiyar, Assistant Commissioner, Authorised Representative for the Respondent ORDER PER : ANIL G. SHAKKARWAR The brief facts of the case are that the appellant is engaged in the manufacture and sale of sugar, molasses, ethyl alcohol, fusel oil etc. The entire factory complex of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner, Central Excise Customs, Ahmednagar Division, issued a notice to show cause cum demand to the appellant having Centralized Serial No. 156/CEX/2002 and divisional Serial No. 117/CEX/2002 dated 8.4.2002 directing the appellant to show cause as to why the cenvat credit utilized from the cenvat credit register of the distillery division amounting to Rs.77,59,089/- should not be treated as incorrect utilization of cenvat credit. The Deputy Commissioner, Ahmednagar Division, Ahmednagar adjudicated the matter and passed his order in original No.29/2002 dated 8.7.2002 whereby he has withdrawn the show cause notice dated 8.4.2002. Revenue preferred an appeal against the said order in original No.29/2002 before the Commissioner (Appeals) Aur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order. Hence the appeal fails and is hereby dismissed the following sentence shall be substituted On factual aspects in this regard there being no dispute applying to the law to the said facts, the appeal succeeds and is allowed. Accordingly, the matter is remanded back to the original adjudicating authority for re-determination of the demand in accordance with the law . The appellant preferred a Central Excise Appeal before the Hon'ble High Court of Bombay, Bench at Aurangabad, which was registered as Central Excise Appeal No. 5 of 2013. By an order dated 11.7.2013 the Hon'ble High Court was pleased to dispose the appeal with direction to the adjudicating authority to consider all objections those may be raised by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of central excise duty on sugar. He has further submitted that Hon ble Bombay High Court had occasion to deal with the issue in First Appeal No.810 of 2004 at its Bench at Aurangabad in the case of CCE, Aurangabad vs. Terna SSK Ltd. Hon ble Bombay High Court Bench at Aurangabad through its order dated 28.09.2017 has answered the question of law framed before the said Hon ble High Court in favour of assesse. The question framed by the Hon ble High Court was whether the credit earned on molasses can be used for payment of duty on sugar when molasses are bye-product of sugar and not input required for manufacture of sugar. He has further submitted that in the assessee s own case for subsequent period from January 2002 to July 2002 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of sugar and it is used for other dutiable as well as non dutiable goods. The credit earned on Molasses (either cleared by their own unit on payment of duty or procured from market) cannot be used for payment of duty payable on sugar as molasses is a bye product of sugar and is not an input required for manufacturer of sugar as such credit earned on molasses cannot be utilized towards payment of duty on sugar? 2. Learned counsel for the parties invited our attention to the Judgment delivered by the Madras High Court in the case of Commissioner of Central Excise, Madurai Vs. Rajshree Sugars and Chemicals Ltd. [in Civil Misc. Appeal No. 2533 of 2005 and CM.P No. 13308 of 2005] and particularly on paragraphs Nos 10 to 13 and would sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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