TaxTMI 
TaxTMI 
2011 (1) TMI 807
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....on 11AB. 2. The facts, succinctly, could be summarized as under : (a) The Appellants, during the material period, were engaged in manufacture of Dimethyl Terephthalate (DMT) falling under Chapter 29 of the Schedule to CETA, 1985. During the course of manufacture of DMT, there arises waste known as DMT Residue. (b) As early as on 22-4-1985, the Appellants informed the Dept. of such emergence of DMT-Residue and enquired whether they were required to take license, as, such Residue was not an excisable product and was also not sold, but was destroyed by using as fuel in Boiler, along with other inputs. On the basis of advice of the Dept., the Appellants submitted application for L-4 licence on 27-4-1985 and L-4 licence was issued to them. The sample of DMP Residue was also drawn for the test purpose by the Dept. on 25-7-1985. The Supdt., by letter dated 25-4-1985, also had clarified that residue obtained and meant for sale would be covered under Tariff Item 68 and have to follow the procedure. The Appellants did not pay duty on DMT - Residue, as the same was not cleared outside the factory, but was used captively as fuel in ....
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.... This order was challenged by the Appellants before Hon'ble Tribunal, being Appeal No. E/757/06. (i) The Hon'ble Tribunal, by its Order No. A/1032/WZB/06/C-I/EB dated 5-5-2006, again set aside the Order-in-Original and remanded the proceedings to Ld. Commissioner, with a specific direction that the Dept. should bring evidence on marketability from an independent market enquiry and decide afresh, considering the law as settled by Apex Court. (j) In remand, Ld. Commissioner, by impugned Order-in-Original No. 34/MS(23)COMMR/RGD/06-07 dated 17-1-2007, once again confirmed the demand and imposed penalties based on the findings : (i) that IPCL-Baroda have accounted for DMT-Residue in their RG-1 for the period March, 1991 to May, 1998 and have cleared it on payment of duty, declaring the value of Rs. 150/- and Rs. 125/- per MT; (ii) that the process of manufacture of IPCL and the Appellants is similar and the same would substantiate the stand that the disputed product is marketable; (iii) &n....
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.... 20% 1997-1998 2917.10 18% 3824.90 18% 1998-1999 2917.10 18% 3824.90 18% 1999-2000 2917.10 16% 3824.90 16% 2000-2001 2917.10 16% 3824.90 16% 2001-2002 2917.10 16% 3824.90 16% 2002-2003 2917.10 16% 3824.90 16% 2003-2004 2917.10 16% 3824.90 16% 2004-2005 2917.10 16% 3824.90 16% 2005-2006 2917.37.00 16% 3825.69.00 16% Along with the chart, he also submitted compilation of provisions of law, Notifications & C.B.E. & C. instructions : (c) With the above, it was submitted that DMT, a final product, was fully exempt upto 19-3-1990. With effect from 20-3-1990, DMT was chargeable to duty, at the effective rates as above, and was being cleared by the Appellants on payment of duty, which is not in dispute. (d) For the period 20-3-1990 onwards, the Appellants would be eligible for exemption under Notn. 217/86-C.E., dated 2-4-1986 (upto 15-3-1995) and, thereafter, under succeeding Notn. 67/95-C.E., dated 16-3-1995. Notifications for the relevant periods would substantiate that all goods falling under Chapter 3....
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....tter dated 25-4-1985 clarifying classification and dutiability, if residue obtained was meant for sale; various other correspondence. Further, first Order-in-Original dropping the demand, holding it to be non-marketable; second Order-in-Original not imposing penalty; non-challenging of second Order-in-Original by Dept., etc. would also support that there was no suppression and mala fides on the part of the Appellants. (h) Ld. Advocate prayed for decision, without even entering into the aspect of marketability, although he does not give up this issue. 5. On the other hand, Ld. SDR, Shri Manish Mohan, vehemently argued in support of the Revenue and made the following submissions, in his support. (a) that exemption for captive consumption under Notn. 217/86-C.E. and succeeding Notn. 67/95-C.E. or, for that matter, availability of modvat of duty payable on DMT-Residue were not the issues raised before Lower Authorities and, hence, the same are not permissible to be raised before the Tribunal; (b) that although Appellants filed Classification Lists, they did not account for the production of DMT-Residue i....
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....ed in 1987 (27) E.L.T. 590 (S.C.). 7. After hearing both sides at length before going into the issue of marketability of the impugned products, viz., DMT-Residue. First we will consider the submissions made by the Ld. Advocate (a) whether the demands confirmed for the period 1-3-86 to 31-3-90 are barred by limitation or not? (b) and for the period subsequent to 20-3-90, whether the appellants are eligible for exemption under notification No. 217/86-C.E., dated 2-4-86 (upto 15-3-95) and thereafter under notification No. 67/95-C.E., dated 16-3-95 or not? 8. The Ld. Advocate has submitted that on 22-4-85 the appellants informed to the department that during the course of manufacture of DMT, DMT-residue emerges for which a enquiry was made from the department i.e. "whether the appellants are required to take license as the said residue is not excisable products and was also not sold by the appellants, but the same was destroyed by them using as fuel in boiler along with other inputs." Thereafter, on the advice of the department, the appellants submit an application for L-4 license on 27-4-85 and L-4 license was issued to them. The sample of DMT-Residue was drawn by the ....
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....s which are placed before him. We hope that in this remand proceedings now being ordered, the material from an independent market enquiry along with the law as now settled by the Apex Court as regards the excisability of all kinds of residue and waste; thereafter apply the law to the facts so ascertained after supplying the material to the manufacturer and hearing them on the same. Thereafter all issues in this appeal be redetermined". 13. From the perusal of the said order, it was directed to the adjudicating authority the issue was to be decided by the adjudicating authority of the marketability of the products viz., DMT-resident in remand proceedings. The adjudicating authority has held that the said product is marketable after making enquiries from the market. Now, it cannot be left open to the Tribunal to examine other issues in the matter and the Tribunals are not to dispense justice but the Tribunals are bound to pass the order within the Act itself. 14. We are not in agreement with the contention of the Ld. DR that the Tribunals are not to dispense justice. First of all, we want to bring out on record that in the remand proceedings vide order dated 5-5-06. T....
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....he adjudicating authority has arrived at a decision that the impugned goods viz., DMT-residue is marketable then the liability casts on the adjudicating authority to arrive at a correct assessable value, to classify product correctly and to ascertain whether the assessee is entitled for benefit of any exemption notification or not and thereafter to arrive at the correct liability. 20. We have observed that the adjudicating authority has arrived at the decision that the product in question is marketable (which is not admitted by the appellant), but thereafter the adjudicating authority has failed to do his duties under the act i.e., whether the appellant is entitled to the benefit of the notification No. 217/86 upto 15-3-1995 and Notification No. 67/95, dated 16-3-95 thereafter. 21. We have gone through the notification, which grant exemption for captive use. In this case, it is no doubt that DMT-Residue has been used by the appellants in their own factory for generation of steam in boiler for further manufacturing of the final products viz., DMT. This fact has not been considered by the adjudicating authority and it is a question of law whether the appellants are en....