2017 (12) TMI 940

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....SI exemption under Notification No.8/2003-CE as amended. During the course of manufacture of HDPE / PP woven sacks / fabrics, HDPE tapes / strips emerge as intermediate products which are captively consumed by appellant. However, HDPE / PP tapes or strips have been specifically excluded under clause (viii) of the annexure to Notification No.8/2003-CE. Department took the view that the appellant was required to pay duty on the said intermediate products. Proceedings initiated against the appellant culminated in issue of adjudication order dt. 111.5.2009 whereby the original authority inter alia, confirmed demand of Central Excise duty of Rs. 4,22,753/- for the period 1.1.2008 to 31.3.2008 with interest thereon and imposition of penalties. In....

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.... was the subject-matter of discussion by the Hon'ble Supreme Court in the case of M/s. Ambuja Cements Ltd. (supra). The Supreme Court observed as under:- "12. In the present case, we find that the Clinker is used as input for production of Cement and Cement is exempted from the excise duty. Therefore, by virtue of this proviso insofar as Clinker is concerned, Exemption Notification would not apply. However, the matter does not end here inasmuch as the proviso itself is not applicable under certain circumstances as mentioned therein, viz., in respect of those goods which are cleared under six circumstances. We are concerned here with clause (vi) which states that if goods are cleared by a manufacturer of dutiable and exempted fi....

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....anufacturer produces (a) final products which are chargeable to duty, as well as; (b) exempted goods. The Rule does not provide that the same final product should be partly dutiable and partly exempted. On the contrary, this Rule relates to taking of Cenvat credit in respect of 'inputs'. 16.This Rule is not applicable as such in its totality since taking of Cenvat credit is not in issue in these cases. On the other hand, relevance of this Rule is only to the extent of 'obligation' contained in the said Rule which is to be discharged. A plain reading of clause (vi) of the notification would show that it only contemplates a situation where 'a manufacturer manufactures both dutiable as well as exempt final products....

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.... 9. On a careful consideration, we note the decision of the Tribunal in M/s.Kunnath Textiles (supra) did not deal with the proviso and the legal implication of the said proviso to the notification as discussed in the decision of the apex court in M/s. Ambuja Cements Ltd. (supra). The Tribunal decided the applicability to Notification No.67/1995-CE to the goods not covered under Notification No.8/2003-CE, being intermediate products. Though, the exemption was held not available, the issue regarding the proviso and more specifically the implication of clause (vi) of the provisio under Notification No.67/1995 was not discussed to lay down any ratio. We find the Hon'ble Supreme Court examined the said provisio and laid down the legal pos....