2013 (5) TMI 64

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....sp;                  For the Respondent: Shri S.K. Mall, A.R. Per : Mr. M.V. Ravindran; These two appeals are directed against the order in original No.44-45/DEM/SURAT/2012, dt.29.03.12. 2. Heard both sides and perused the records. 3. On perusal of the records, we find that the issue involved in these appeals are regarding discharge of an amount of equal to 10% or 5% of the total value of the final products i.e. Bagasse an exempted product and appellant having availed cenvat credit on common inputs, capital goods and common input services, having not maintained separate accounts; for the bagasse cleared by them during the period October 2005 to July 20....

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.... Shakumbhari Sugar & Allied lndustries Limited [2005 (189) ELT 62 (SC)], uphold the findings recorded by the Tribunal in the case of CCE v. Shakumbhari Sugar and Allied Industries Limited, whereby it has been held that the 'Bagasse' obtained during the course of manufacture of sugar out of sugarcane may find an entry in Schedule to the Central Excise Tariff, but it does not become a final product merely on such entry. Such 'bagasse' is nothing but a waste obtained during manufacture of sugar waste cannot be regarded as a final product exempt from duty for invoking provisions of Rule 57 CC of Central Excise Rules, 1944. The said finding has also been followed in the cases of Central Excise Commissioner v. Mahalakshmi Sugar Mills and Commissi....

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.... material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable. So far as the added to Section 2 (d), it only refers to the goods which is capable of being bought and sold shall be deemed to be marketable. Earlier also, bagasse was being bought and sold for a consideration and even after the amendment in 2008 it is being bought and sold for a consideration. Hence, it was marketable earlier also and no difference has been made about the marketability of bagasse on account of addition of explanation to Section 2 (d) of Central Excise Act inasmuch as it does not cease to be waste and it does not become a manufactured final product for the purposes of Rule 6 of CENVAT Credit....

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....is classified under sub-heading 2303 20 00 of Central Excise Tariff Act. In view of the judgment of Apex Court in Civil Appeal No.2791 of 2005, Commissioner of Central Excise v. Batrampur Chini Mills, Gonda, decided on 21.10.2010, the Circular of the Chief Commissioner, Central Excise, Lucknow as well as Circular of Central Board of Excise and Customs are liable to be quashed which is the basis for issuing the demand. In the impugned notice dated 27.9.2010, it has been mentioned that as per Rule 6 of the CENVAT Credit is availed on the inputs which are used in the manufacture of both dutiable and final products, then an amount equal to 10% (upto 6th July, 2009) or 5% (w.e.f. 7.7.2009) of the sale value of exempted final products is required....