TaxTMI 
TaxTMI 
TaxTMI 
2024 (2) TMI 614
X X X X Extracts X X X X
X X X X Extracts X X X X
....Sh. Siddharth Jaiswal ( Jt. Commr. ) , AR Sh. Harish Kapoor ( Supdt. ) , AR Sh. Raman Mittal ( Insp. ) , AR ORDER PER : S. S. GARG Four appeals filed by M/s Pepsico India Holdings Pvt Ltd 'Appellant No.1' and two appeals filed by M/s Max Builders 'Appellant No.2' are directed against different impugned Order-in-Appeal passed by the ld. Commissioner (Appeals), whereby the ld. Commissioner has confirmed the duty demand under Section 11A and also imposed penalty on the Appellant No.1 under Rule 25 of the Central Excise Rules, 2002. Further, the ld. Commissioner has also imposed penalty on the Appellant No.2 under Rule 26 of of the Central Excise Rules, 2002. Since the issue involved in all six appeals is identical, therefore, all six appe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....00 of the Tariff by manufacturing and clearing the same clandestinely under the garb of scrap-veg-refuse without payment of appropriate duty and without reflecting the same in their monthly ER-1 returns, the unit was visited by the Central Excise Officers and after the detailed investigation, show cause notices were issued and after following the due process, the Adjudicating Authority confirmed the demand and also imposed penalties. Aggrieved by the said order, the Appellants filed appeals before the Commissioner (Appeals), who rejected the appeals filed by the Appellants. Hence, the present appeals. 3.1 The learned Counsel for the Appellants submits that the impugned orders are not sustainable in law and are liable to be set aside as the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....residue which was being cleared by the Appellant No.1 as 'scrap-veg-refuse' during the relevant period. 3.5 He further submits that the Appellant No.1 is not engaged in the manufacturing of starch. In support of his contention, he places reliance on the following decisions wherein it has been held that to levy excise duty, the excisable goods needs to satisfy twin test of manufacture and marketability:- (a) Hindalco Industries Ltd vs UOI - 2015 (315) ELT 10 (Bom.) affirmed by SC as 2019 (367) ELT A246 (SC) (b) Balrampur Chini Mills Ltd vs. UOI - 2014 (300) ELT 372 (All.) affirmed by SC as 2015 (322) ELT 769 (SC) (c) DSCL Sugar vs. UOI - 2017 (355) ELT 61 (All.) (d) NK Proteins Ltd vs. CCE & ST, Ahmedabad-III - 2023-TIOL-338-CESTA....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ared that the impugned goods qualifies all the criteria mentioned in the said Chapter Heading and therefore, is liable to nil rate of duty. 3.9 He further submits that the impugned goods is not classifiable as 'potato starch' under Chapter Heading 11081300 as the said product does not meet the criteria as provided in the HSN explanatory notes for the Chapter 1108. The HSN explanatory notes clearly states that the potato starch falling under Chapter 1108 shall be physically in white powdered form, however, in the present case, the 'scrap-veg-refuse' is physically in the form of a wet paste. He places reliance on the following decisions wherein it has been held that presence of certain elements in the residue or scrap does not take it out of....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... CCE vs Indian Aluminum Co. Ltd - 2006 (203) ELT 3 (SC) (d) Deepak Vegpro Pvt Ltd Vanaspati Division vs CCE, Patna - 2022-TIOL-749-CESTAT-KOL 3.11 The learned Counsel for the Appellants also contested the invokation of extended period of limitation and the imposition of penalty. 4. On the other hand, the learned DR reiterated the findings of the impugned orders. 5. Heard both sides and perused the records. 6. After considering the submissions of both the parties, we find that the only issue involved in all these appeals is whether the impugned goods 'scrap-veg-refuse' is classifiable under Chapter Heading 23080000 as vegetable waste as claimed by the Appellant or potato starch classifiable under Chapter Heading 1108 as claimed by th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... this, we also find that the impugned goods is not a manufactured product as per Section 3(1) of the Central Excise Act, 1944, which mandates that excisable goods must come into existence as a result of manufacturing process so as to attract the levy of excise duty; whereas in the present case, 'scrap-veg-refuse' came into existence pursuant to process of recycling of waste water, undertaken only to reuse the reusable water content in the waste water. 9. Further, we find that test report of Central Revenue Control Laboratory produced by the Revenue, is not conclusive as it only states that the sample tested positive for starch without going into the details of the composition of the sample and has not given any conclusive proof. 10. Furth....