2011 (4) TMI 379

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.....   2. During the course of manufacture of detergent washing powder, a bye-product, viz., spent sulphuric acid emerges which is classifiable under chapter sub heading 28070010. The said bye-product is cleared on payment of duty and also cleared at nil rate of duty under notification No.4/2006-CE dated 1.3.06 which exempts sulphuric acid, oleum, oxygen and ammonia from payment of duty if used in the manufacture of fertilizers and where such use is elsewhere than in the factory of production, the exemption shall be allowed if procedure set out in the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 is followed. The respondents had cleared the goods in question, viz., spent s....

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....st was confirmed and penalties equal to demand was also imposed on the appellant.   4. Aggrieved with the said order of original adjudicating authority, Revenue filed the appeal before Commissioner(Appeals), who rejected the same. Hence, the present appeal.   5. We find that the issue is no res integra and stand settled by earlier order of the Tribunal in same appellant s case, being Order No.A/2350/WZB/ AHD/2009, dt.12.11.09. The said order was subsequently followed by the Tribunal in the case of CCE Vadodara Vs. M/s Nirma Ltd., being Order No.A/1810-1812/WZB/AHD/2010, dt.15.7.10. For better appreciation, we reproduce relevant paragraph from the above order.   7. After hearing both the sides we find that the issue i....

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.... order.   6. I have carefully gone through the case records, submissions made in the miscellaneous application, memorandum of appeals and record of personal hearing. I find that in the appellant s own unit situated at Mandali (Mehsana), the Hon ble CESTAT Ahmedabad vide Order No.A/2350/WZH/AHD/2009 (M/1384/WZB/AHD/2009), dt.12.11.09, rejected the Revenue s appeal following the decision passed in the case of M/s Rallis India Ltd. Vs. UoI reported at 2009 (233) ELT 301 (Bom.) and in the case of M/s J.K. Malt Products Pvt.Ltd. Vs. CCE, Ahmedabad reported at 2009 (92) RLT 839 (CESTAT-Ahmd). Considering the said decision, I dispense with the pre-deposit under the proviso to Section35F of Central Excise Rules, 1944 and proceed to decide t....

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.... Heading 28.07 of the Tariff item. Since the appellant is manufacturing exempted and dutiable Spent Sulphuric Acid, Rule 6 of Cenvat Credit Rules, 2004 shall apply. I, therefore, differ from Hon ble CESTAT s order No. A/2350/WZB/AHD/2009, dt.12.11.09 passed in appellant s own case as the ratio of above decision cannot be applied to the instant case.   8. As is clear from the above reproduced part of Commissioner(Appeals) s order, he is not disputing the fact that the issue is covered by the earlier decision of the Tribunal. However, he has observed that the Tribunal s order relied upon on Hon ble Mumbai High Court s judgment in the case of M/w Rallis India Ltd., which was misplaced. However, we find that as contended by the ld.Advoc....