Custom, Excise & Service Tax Tribunal
N K Proteins Limited vs Ahmedabad-Iii on 3 March, 2023
Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
REGIONAL BENCH- COURT NO.3
Excise Appeal No. 10542 of 2013
(Arising out of OIA-09/2013/AHD-III/SKS/COMMR/A/AHD dated 17/01/2013 passed by
Commissioner of Central Excise-AHMEDABAD-III)
N K Proteins Limited ......Appellant
880, Kadi-Thor Road,
Village : Thor,
Ahmedabad, Gujarat
VERSUS
C.C.E. & S.T.-Ahmedabad-iii .........Respondent
Custom House... 2nd Floor, Opp. Old Gujarat High Court, Navrangpura, Ahmedabad, Gujarat - 380009 WITH Excise Appeal No. 10543 of 2013 (Arising out of OIA-188/2012/AHD-III/SKS/COMMR-A/AHD dated 10/12/2012 passed by Commissioner of Central Excise-AHMEDABAD-III) N K Proteins Limited ......Appellant 880, Kadi-Thor Road, Village : Thor, Ahmedabad, Gujarat VERSUS C.C.E. & S.T.-Ahmedabad-iii .........Respondent Custom House... 2nd Floor, Opp. Old Gujarat High Court, Navrangpura, Ahmedabad, Gujarat - 380009 AND Excise Appeal No. 10544 of 2013 (Arising out of OIA-196/2012/AHD-III/SKS/COMMR-A/AHD dated 14/12/2012 passed by Commissioner of Central Excise-AHMEDABAD-III) N K Proteins Limited ......Appellant 880, Kadi-Thor Road, Village : Thor, Ahmedabad, Gujarat VERSUS C.C.E. & S.T.-Ahmedabad-iii .........Respondent Custom House... 2nd Floor, Opp. Old Gujarat High Court, Navrangpura, Ahmedabad, Gujarat - 380009 APPEARANCE:
Shri Hardik Modh, Advocate for the Appellant Shri G.Kirupanandan, Assistant Commissioner (AR) for the Respondent CORAM: HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR HON'BLE MEMBER (TECHNICAL), MR. C.L. MAHAR Final Order No. A/ 10391 - 10393 /2023 DATE OF HEARING: 13.02.2023 DATE OF DECISION: 03.03.2023
2|Page E/10542-10544/2013-DB RAMESH NAIR The issue involved in the present case is that -
1. whether Spent earth arising during the course of manufacture of refined vegetable oil is a manufactured goods and liable for excise duty.
2. Whether the spent earth being residue / waste is eligible for exemption notification no. 89/95- CE dated 18.05.1995.
2. Shri Hardik Modh, Learned Counsel appearing on behalf of the appellant submits that firstly the spent earth is not a manufactured goods but it is a residue hence not liable for payment of duty. He further submits that even if it is considered as manufactured goods the same is eligible for exemption notification no. 89/95- CE dated 18.05.1995. He submits that the issue is no longer under dispute as in the various following judgment it was held that spent earth generated during the manufacture of refined oil is not a manufactured goods hence, not liable to duty.
Ricela Health Foods Ltd Vs. CCE , Chandigarh - 2018 (361) ELT 1049 (Tri.- LB) Commissioner of Central Excise , Chandigarh-I vs. Marico Ltd. - 2022 (382) ELT 436 (SC) Shree Fats & Proteins Pvt. Ltd. Vs. Commissioner of C. Ex,- Jaipur-I
- 2017 (357) ELT 1142 ( Tri.- Del) Commissioner of Cus. & C. Ex, Hyderabad -III vs. Divis Lab - 2017 (347) ELT 275 (Tri.- Hyd) Arihant Solvent Pvt. Ltd vs. Commissioner of Central Excise, Jaipur - I - 2015 (316) ELT 290 (Tri.- Del)
3. Shri G.Kirupanandan, Learned Assistant Commissioner (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order.
3|Page E/10542-10544/2013-DB
4. We have carefully considered the submission made by both sides and perused the records. We find that the very same issue has been considered by this Tribunal's Larger Bench in the case of Ricela Health Foods Ltd (Supra) and following the said larger bench judgment the Hon'ble Supreme Court also dismissed the Revenue's appeal upholding the view taken by the Tribunal. We further find that in the case of Shree Fats and Proteins Pvt Ltd (Supra) this Tribunal has taken a view that recovered oil and tank sledge emerging during refining oil is not liable to central excise duty as the same is either covered under exemption Notification No. 89/95- CE dated 18.05.1995 as waste product or not arising out of manufacturing process as in case of bottom sediments called tank sledge. In the present case also the nature of process and also the goods i.e. spent earth is absolutely identical to the goods in the above decision. The Division Bench of this Tribunal in the case of Divis Lab dealing with the identical nature of goods held that waste obtained as by product during manufacturing process i.e. spent solvent is not excisable as products merely industrial waste and not goods of high purity. In the same decision it was further held that issue relating to dutiability of spent earth arising as residue in process of refining crude palm oil was considered in Jaimini edibles and facts India Pvt ltd and decided in assessee's favour. The similar view was taken by the Principal bench of this Tribunal In the case of Arihant Solvent Pvt. Ltd (Supra) that gad, sludge, acid oil and spent earth obtained in the course of refining of vegetable oil is waste entitle for benefit of notification no. 89/95- CE. 4.1 We find that the Revenue has contended that as per the amendment in section 2 (d) of Central Excise Act, 1944 all the goods arising during manufacture is liable to duty. On going through amended Section 2 (d) we find that section 2 (d) does not decide what is manufacture and what is not manufacture. Even though the Section 2 (d) was amended but the definition of manufacture under section 2 (f) remains same before and after
4|Page E/10542-10544/2013-DB amendment in section 2 (d). When based on the process it was found that the process of generation of spent earth is not such which falls under the definition of manufacture given in section 2 (f) the amendment of section 2 (d) will not have any effect. Therefore, the revenue's contention on the amendment of 2 (d) is not of any help to them.
5. As per our above discussion and finding, taking support of the various judgment cited above the spent earth generated in the manufacture of refined oil is not liable for excise duty. Accordingly, the impugned orders are not sustainable hence, the same are set aside. Appeals are allowed with consequential relief.
(Pronounced in the open court on 03.03.2023 ) RAMESH NAIR MEMBER (JUDICIAL) C.L. MAHAR MEMBER (TECHNICAL) geeta