TaxTMI 
TaxTMI 
2009 (3) TMI 498
X X X X Extracts X X X X
X X X X Extracts X X X X
....nts. Penalties were also proposed. The Addl. Commissioner confirmed the proposals in the show cause notice. The respondents approached the Commissioner (Appeals) who set aside the orders of the Addl. Commissioner. Revenue preferred appeal before CES TAT, Bangalore. This Bench vide final order No. 1458 & 1459/2005 dated 22-8-2005 remanded the matter to the Original Authority for de novo consideration. The Addl. Commissioner passed the order, whereby he dropped the proceedings in respect of spent methanol solvent. Revenue was aggrieved over the impugned order of the Addl. Commissioner and therefore an appeal was filed before the Commissioner (Appeals) on several grounds. According to the Revenue, the adjudication authority erred in dropping the proceedings by holding the spent methanol/solvents are not excisable. The Commissioner (Appeals) has examined the issue in depth and rejected Revenue's appeal. Revenue is aggrieved over the impugned order of the Commissioner (Appeals) on the following grounds:- The order-in-appeal No. 10/2007 (H-I)(D)-C.E., dated 20-6-2007 passed by the Commissioner of Customs and Central Excise (Appeals), Hyderabad in the case of M/s. Lee Pharina Pvt. Ltd., ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en though the purity of the impugned goods ranges from 40% to 80% and the assessees are paying Central Excise Duty by resorting to Gross Under valuation. This is evident from various statements recorded from the persons who have purchased the impugned goods. 4.4. The Commissioner (Appeals) appears to have erred in stating that the present case is distinguishable with that of the ratio of the decision of the Hon'ble Tribunal given in the case of M/s. Southern Petrochemical Industries v. OCE, Madras, 2002 (148) E.L.T. 1012 (T-Chennai) as in the case of M/s. Southern Petrochemical Industries, spent sulphuric acid is a by-product whereas in the present case spent solvent is not a by-product. The Commissioner (Appeals) has not given any reasons for his conclusion. If spent sulphuric acid is considered a by-product, Spent Methanol/Solvents, are also by-products. In the case of M/s. Southern Petrochemical industries, the Hon 'ble Tribunal held, "Spent Sulphuric acid emerging after concentrated sulphuric acid used in process of manufacture of Chlorine - Duty chargeable on spent sulphuric acid cleared from appellant's factory". In the present case also, Spent Methanol/Solvents emerge after....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to duty on the appropriate value of the goods. 6. Further, Commissioner (A) relied upon the Hon'ble Tribunal's judgment in the case of S.D. Fine Chem. Pvt. Ltd. v. Collector reported in 1997 (91) E.L.T. 610 which deals with purification of 'bought out " chemicals. This case is not relevant to the present case in as much as in the present case the spent solvents are not bought out but have come into existence within the factory during the process of manufacture of bulk drugs and bulk drug intermediates. 3. We have cases gone through the records of the carefully. Similar issue was the subject matter before this Tribunal in the following cases: (a) CCE, Hyderabad v. Aurobindo Pharma Ltd. [2006 (200) E.L.T. 236 (Tri. Bang.)] (b) CCE, Hyderabad-III v. Natco Pharma Ltd. [2007 (208) E.L.T. 573 (Tri. Bang.)] 4. The findings of the Tribunal in the Aurobindo Pharma Ltd. case, are applicable to the present case. Even though excisability was not the issue in the appeal, it is very basic to levy of duty. If there is no excisability, the question of valuation also does not arise. On that ground, it is not possible to allow Revenue's appeal. Moreover the following findings in the Aurobindo c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se of Commissioner, Central Excise v. Bakul Aromatics & Chemicals Ltd. - 1989 (43) E.L.T. 758 and S.D. Fine Chemicals Pvt. Ltd. v. Commissioner, Central Excise - 1997 (91) E.L.T. 610, held that as the resultant product has the same characteristics except for the concentration, it is not possible to say that change in concentration would result in emergence of new product. Similarly in the case of Commissioner v. Yash Pharma Chemicals (Bombay) Pvt. Ltd. - 2001 (135) E.L.T. 1206 (Tri. - Del.) it was held, after taking note of the precedent decisions that howsoever elaborate the process undertaken is, the test for determination whether manufacture has taken place or not in the sense, Central Excise law is whether new products having different name, use and character has come into existence or not. Accordingly, the process of recovery of tartaric acid from L2 ABT was held as not manufacturing process as tartaric acid was already present in initial product L2 ABT and the entire process was originally started with the product Tartaric acid. By applying the above tests to the present case, we are of the view that the recovery process undertaken by the appellant by increasing the concentra....