Customs, Excise and Gold Tribunal - Bangalore
Commissioner Of Central Excise vs Natco Pharma Ltd. on 18 October, 2006
Equivalent citations: 2006(106)ECC333, 2006ECR333(TRI.-BANGALORE), 2006(201)ELT18(TRI-BANG)
ORDER S.L. Peeran, Member (J)
1. The Revenue is aggrieved with Order-in Appeal No. 144/2003-C.E., dated 20-11-2003 by which the Commissioner (A) has accepted the assessee's contention in the light of several judgment of the Tribunal that duty cannot be confirmed including fine and penalty in respect of clearance of spent solvents like Methonal, Ethyl Acetate, Acetone, Benzene, Tolune, IPA Xylene, EDC, as the same had been initially suffered duty and on subsequent use in processes undergone by it has become industrial waste. Although, it is sold at some price but they cannot be treated as spent solvents having purity of more than 90% for classification under various heading of Chapter 29.
2. The Commissioner has followed the ratio of the following judgment rendered in the case of (a) Hindustan Lever Limited v. CCE (b) Markfed Vanaspati & Allied Industries v. CCE, Chandigarh . The judgment of Markfed Vanaspati (supra) has attained finality before Supreme Court as reported in 2003 (153) E.L.T. 491 (S.C.). He has also relied on certain other judgments.
3. The learned Counsel submits that the Larger Bench judgment in the case of Markfed Vanaspati & Allied Industries (supra) has held that spent earth is not manufactured item and not excisable. This Larger Bench judgment has been affirmed by Apex Court as reported in 2003 (153) E.L.T. 491. He referred to this Bench's order dismissing Revenue appeal against CCE, Hyderabad v. Aurobindo Pharma Ltd. in respect of identical products i.e., use of methanol (spent solvent) purified and captively consumed and excess sold without payment of duty. He also referred to the judgments of various Benches of Tribunal rendered in the following cases.
(i) New Sharrock Mills v. CCE, Vadodara
(ii) S.D. Fine Chem (Pvt.) Limited v. CCE 1997 (91) E.L.T. 610 (T).
(iii) Bellary Steels & Alloys Ltd. v. CCE, Belgaum 2006 (199) E.L.T. 808 (Tri.-Bang.)
(iv) Alok Udyog Vanaspati & Plywood Ltd. v. CCE, Calcutta .
(v) CCE, Mumbai v. Deepak Fertilizers & Petro Corporation Ltd. 2004 (178) E.L.T. 686 (Tri.-Mumbai)
(vi) CCE, Mumbai-VII v. Uttam Steel Ltd. 2005 (190) E.L.T. 33 (Tri.-Mumbai) He also relied on the following Supreme Court decisions.
(i) UOI v. Ahmedabad Electricity Co. Ltd. .
(ii) CCE, Patna v. Indian Tube Co. Ltd. 1995 (77) E.L.T. 21 (S.C.).
4. The learned JDR reiterated the departmental view.
5. On a careful consideration, we notice that the Commissioner (A) has analysed the issue in depth and has found that the goods in question did not have the purity for classification under Chapter 29, as the solvent had lost its purity due to its repeated use. The finding given by the Commissioner (A) is just and proper in the light of several judgments rendered by the Tribunal and the Supreme Court.
The ratio of this judgment was applied by this Bench in the case of CCE, Hyderabad v. Aurobindo Pharma Ltd. (supra) in an identical situation. This ratio of the judgment clearly applies to the facts of the present case. The Commissioner was justified in setting aside the demands. There is no merit in this appeal and the same is rejected.
(Operative portion of this Order was pronounced in open court on conclusion of hearing)