2015 (9) TMI 520

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....g the present appeals. The common issue that arises for consideration in the above appeals is whether the assessee is entitled to the credit of duty taken on the inputs, when the final product was cleared at nil rate of duty. 2. It is seen that the issue involved in the above appeals is arising out of the common order passed by the Tribunal. The said common order of the Tribunal has been challenged before this Court in C.M.A.No.285 of 2007. This Court vide order dated 18.06.2015 in C.M.A.No.285 of 2007, following the decision of the Supreme Court in the case of Union of India v. Hindustan Zinc Ltd. 2014 (303) ELT 321 (SC) dismissed the appeal, holding as follows: "11. The issue whether the Spent Sulphuric Acid is a by-product or....

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....ulphur dioxide in the calcination process of concentrated ore is a technological necessity and then conversion of the same into sulphuric acid as a non-polluting measure cannot elevate the sulphuric acid to the status of final product. Technologically, commercially and in common parlance, sulphuric acid is treated as a by-product in extraction of non-ferrous metals by companies not only in India but all over the world. That is the reason why the department accepted the position before the Tribunal that sulphuric acid is a by-product. In these circumstances the position taken now by the appellant that sulphuric acid cannot be treated as a by-product cannot be countenanced. Mr. S.K. Bagaria, learned Senior Counsel appearing for the respondent....

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....he whole of the duty of excise leviable thereon or chargeable to nil rate of duty or is specified as a final product. 15. In the present case, as the Spent Sulphuric Acid is not a final product, as has been held in the decision of the Supreme Court and assuming it is a waste, refuse or by-product, it is chargeable to nil rate of duty, Rule 57D provides for taking credit. 16. There is yet another factor which needs to be considered is that part of the Spent Sulphuric Acid, which is a by-product in the manufacture of the final product, namely, Acid Slurry, is cleared on payment of duty and part of it is cleared at nil rate of duty under Chapter X procedure in terms of Notification No. 8/96-CE dated 23.7.1996 and Notification....