TaxTMI 
TaxTMI 
2025 (8) TMI 163
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....g wrongly the benefit of Notification No.23/2003-CE dated 31.03.2003 as amended thereby short-paid duty. On completion of investigation, show-cause notice was issued to the appellant on 01.08.2012 for recovery of total Central Excise duty of Rs.3,99,26,609/- with interest and penalty for the period July 2007 to December 2011. On adjudication, the demand was confirmed with interest and penalty. Hence, the present appeal. 3.1. At the outset, the learned advocate for the appellant has submitted that the appellant an 100% EOU are engaged in the manufacture and export of bulk drugs / active pharmaceutical ingredients falling under Chapter 29 of the CETA, 1985 and holder of Central Excise registration for the manufacture of the same. During the course of manufacture of bulk drugs process, processed or spent solvents generated, which are cleared to DTA classifying the same under Chapter sub-heading 29420090 of CETA, 1985. The Department on the basis of investigation alleged that processed solvents like Processed Acetone, Processed Toluene, Processed Isopropyl Alcohol etc. cleared by the appellant into DTA are not similar to exported or expected to be exported goods by them viz. bulk dr....
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....olvents / industrial solvents / recovered solvents had been decided in favour of the assessee. The said case was later approved by the Hon'ble High Court of Andhra Pradesh and on appeal by the Department, maintained by the Hon'ble Supreme Court. He has further submitted that the decision in Aurobindo Pharma case was followed by the CESTAT in the case of Orchid Chemicals & Pharmaceuticals Ltd. Vs. CCE, Aurangabad [2017(356) ELT m287 (Tri. Mumbai)]. Also in the case of SD Fine Chem (Pvt.) Ltd. Vs. CCE, it has been held that spent solvents / recovered solvents during the manufacture of bulk drug intermediaries were not excisable goods. Further, they have referred to the judgment of the Hon'ble Supreme Court in the case of Servo-Med Industries Pvt. Ltd. Vs. CCE [2015(319) ELT 578 (SC)] in support of their case that spent solvents are not excisable goods. Further, he has submitted that for the subsequent period November 2015 to October 2016, demand confirmed by the adjudicating authority has been set aside by the learned Commissioner of Central Tax(Appeals), Bangalore following the ratio laid down in Aurobindo Pharma Ltd.'s case. Therefore, the present demand is unsustainable in law. ....
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....". The product is required to be disposed of as they are hazardous under the Pollution Control norms. Therefore, such removal cannot be held to be marketable goods and they are subjected to excisability. Although, the Revenue had taken the grounds for valuation but the assessee had contested the issue of excisability. Since the question of excisability is fundamental to the matter, the Commissioner (A) was justified in taking up this issue and deciding it in the light of the earlier judgment. There is no merit in this appeal and the same is rejected." The said judgment was later upheld by the Hon'ble High Court of Andhra Pradesh and later maintained by the Hon'ble Supreme Court. 8. We find that after amendment to the definition of excisable goods under 2(d) of the CEA, 1944, referring to the ratio laid down in Aurobindo Pharma Ltd. case and the judgment of the Hon'ble Supreme Court in the case of UOI Vs. DSCL Sugar Ltd. [2015(322) ELT 769 (SC)], this Tribunal in Orchid Chemicals & Pharmaceuticals Ltd.'s case observed as follows:- 7. The issue needs to be decided in the case in hand is whether the mixture of solvents, which is sold by the appellant, is excisable produ....
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....ave considered the submissions made at length by both sides and perused the records. We find that in the case of the respondent i.e. Aurobindo Pharma Ltd. (supra), this Bench has held that the issue in favour of respondent and hence the issue is no more res integra. Further, it is also seen that in the case of Sreepathi Pharmaceuticals Ltd. (supra) & Natco Pharma Ltd. (supra), the issue was the very same as is before us i.e., spent solvent and excisability thereof. We find that the learned Commissioner (Appeals) reliance upon the decided case laws of the very same Bench to hold in favour of respondent seems to be correct. We also note that the learned Commissioner (Appeals) has followed the judgment given by the Tribunal." From the above reproduced paragraphs, it can be seen that the issue involved in the case in hand and in the case of Aurobindo Pharma Ltd. is the same. At least up to 10-5-2008, the question of excisability of the mixed solvent that arises during the course of manufacturing of bulk drugs, does not arise as it does not get covered in the provisions of Section 2(f) of the Central Excise Act, 1944. This judgment of the Tribunal having been affirmed by the Ho....
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...., no duty is payable thereupon. For arriving at this conclusion, the High Court also have relied upon the judgment of this Court in Balrampur Chini Mills Ltd. in C.A. No. 2791 of 2005 decided on 21-7-2010 [2015 (320) E.L.T. A258 (S.C.)]. 6. The aforesaid judgment was pronounced by this Court related to the period before 2008. In the year 2008 there was an amendment in Section 2(d) as well as in Section 2(f) of the Act which defines 'excisable goods' and 'manufacture' respectively. Section 2(d) with the said amendment reads as under : "Section 2(d) - "excisable goods" means goods specified in [the First Schedule and the Second Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986) as being subject to a duty of excise and includes salt; Explanation. - For the purposes of this clause, "goods" includes any article, material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable." 7. As per the aforesaid explanation, "goods" would now include any article, material or substance capable of being bought or sold for consideration and as such goods shall be deemed to be marketable. T....