TMI Blog2003 (9) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... oxygen and nitrogen which are the appellants' final products. Usually, the carbon dioxide free air is blown off by the appellants in the atmosphere, but if there is an available customer, the same is compressed and sold as "Zero Air" classificable under Chapter 2851.30 attracting nil rate of duty. 2. Proceedings were initiated against the appellants by way of issuance of show cause notice dated 29-9-2000 proposing to recover an amount of Rs. 61,962.00 (Rupees sixty-one thousand nine hundred and sixty-two) equivalent to 8% of the value of "Zero Air" so cleared by the appellants during the period from October, 1995 to August, 1999 in terms of the erstwhile Rule 57CC. The said duty demand was confirmed by the original adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the effect that - ".........Where a manufacturer is engaged in the manufacture of any final product which is chargeable to duty as well as in any other final product (emphasis provided) ........." As such, he submits that inasmuch as "Zero Air" is not their final product, the provisions of Rule 57CC will not apply. Learned Advocate also places reliance upon the Tribunal's decision in the case of Pushpaman Forgings v. Commissioner of Central Excise, Mumbai-VII reported in [2002 (149) E.L.T. 490 (Tribunal) = 2002 (48) RLT 107 (CEGAT - Mum.)] laying down that in the absence of any machinery provisions in the Act or the Rules for the recovery of the amount of 8% of the price of the exempted final product in terms of Rule 57CC, the same are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the same on regular basis. The fact that such carbon dioxide free air is compressed into "Zero Air" only on rare occasions depending upon the availability of the customers, is a factor indicative of the fact that such carbon dioxide free air emerges during the course of manufacture of the appellants' main product as a by-product only. We also find a lot of force in the appellants' contention that the provisions of Rule 57CC would not be applicable in the instant case, inasmuch as the same are to be invoked in a case where an assessee is engaged in the manufacture of two final products - one attracting duty and the other being cleared at nil rate of duty. The ratio of the West Regional Bench decision in the case of M/s. Pushpaman Forgi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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