2023 (8) TMI 1137

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....Central Excise Duty. 2. Shri S.J. Vyas, Learned Counsel, appearing on behalf of appellant at the outset submits that issue is no longer res-Integra as per the following Judgments: • Nk Proteins Limited Versus C.C.E. & S.T. - Ahmedabad-III 2023 (5) TMI 512 - CESTAT Ahmedabad • M/S Ricela Health Foods Ltd., M/S J.V.L. Agro Industrial Ltd., M/S Kissan Fats Limited Versus CCE, Chandigarh, Allahabad 2018 (2) TMI 1395 CESTAT New Delhi • Maheshwari Solvent Extraction Ltd. Versus Commissioner Of Central Excise, Nagpur, Maharashtra 2023 (5) TMI 1149 CESTAT Mumbai • Adani Wilmar Ltd - Order Dated 7-2-23 3. Shri Ashok Thanvi, Learned Superintendent (AR), appearing on behalf of the revenue reite....

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....arger Bench of the Tribunal in Ricela Health Foods (supra) and it has been held that these products are not intentionally manufactured but only arise during the process of refining of crude vegetable oil and therefore should be considered as waste and they are entitled to the benefit of exemption notification 89/1995-CE. Respectfully following the decision of the Larger Bench, we hold that the impugned order is unsustainable and liable to be set aside and we do so. 9. The appeal is allowed and the impugned order is set aside. The same issue has been considered by CESTAT- New Delhi in the case of M/S. RICELA HEALTH FOODS LTD., M/S. J.V.L. AGRO INDUSTRIAL LTD., M/S. KISSAN FATS LIMITED (supra) wherein, the tribunal has obser....

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....by the Apex court incorrectly as dismissal of SLP; (d) the order of the Hon'ble Supreme Court affirming the decision of the Tribunal in A.G. Fats (supra) by dismissing the civil appeal will not form a binding precedent in view of similar dismissal of civil appeal against a contrary decision in Priyanka Refineries (supra). Thus, there exist two decisions of co-equal Benches on the same Issue. The Larger Bench of the Tribunal, now seized of the matter, should take a view which correctly reflects the legal position. Reliance was placed on the decision of Hon'ble Calcutta High Court In New India Assurance Co. Ltd. - AIR 2004 CAL 1. 7. The learned Counsel reiterated that the Larger Bench is deciding only on the referenc....

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....question, are unwanted/inevitable waste. The value realized by the appellants on such unintended waste by sale, itself is not a criteria to decide the excisability. The Hon'ble Supreme Court in CCE vs. Indian Aluminium Company 2006 (203) E.L.T. 3 (S.C.) held zinc dross and flux skimming are not eligible to central excise duty. Relying on the earlier decisions in Union of India vs. Indian Aluminium Company Ltd. 1995 (77) E.L.T. 268 (S.C.) and CCE, Patna vs. Tata Iron & Steel Company Ltd.. - 2004 (165) E.L.T. 386 (S.C.), the Apex court held that the dross and skimming arising during the course of manufacture of metal cannot be subjected to excise levy only because it may have some saleable value, observing that the term "manufacture impli....

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....arth, which when present makes the oil as crude refined oil. 11. The thrust of the arguments by the Revenue is that when a product is capable of being sold for a significant consideration the same cannot be considered as waste. We are unable to accept such summary presumption. Admittedly, in chemical and metallurgical industry when the raw materials are processed with an intended purpose of manufacturing certain final products by a chemical reaction, refining, melting etc. multiple products will result. These products either emerged in the final stage or any of the intermediating stages also. The point for consideration is whether these are to be considered as manufactured goods for excise levy based on the statutory definition for....

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....e goods. Noting that the reference is to decide whether these are to be treated as waste for the purpose of exemption Notification 89/95-CE we note though the excisability of the product itself is seriously in dispute as per the opinion expressed by us, as above, these cannot be considered as anything other than waste and as such will be covered by the exemption Notification No. 89/95-CE. This has been pleaded as a alternate argument by the appellant/assessee also. 12. As such in view of the above discussion and finding, we note that the appellant/assessee are eligible for exemption under the said notification. 13. The appeal files are returned, with the above findings, to the regular Division Bench for decision on the poi....