Custom, Excise & Service Tax Tribunal
M/S.Sai Sulphonates Pvt.Ltd vs Commissioner Of Central Excise, ... on 15 December, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Miscellaneous Application No.MA-75502/16
Appeal No. E/76272/16
(Arising out of Order-in-Original No.33-35/COMMR/CE/KOL-III/2015-16 dated 22.03.2016 passed by the Commissioner of Central Excise, Kolkata-III.)
M/s.Sai Sulphonates Pvt.Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Kolkata-III
Respondent (s)
Appearance:
Shri B.N.Chattopadhyay, Consultant for the Appellant Shri S.N.Mitra, AC(AR) for the Revenue CORAM:
HONBLE SHRI JUSTICE (DR.) SATISH CHANDRA, PRESIDENT HONBLE SHRI ASHOK K. ARYA, MEMBER(TECHNICAL) Date of Hearing :- 15.12.2016 Date of Pronouncement :- 15.12.2016 ORDER NO.MO/75759/2016 & FO/A/76294/2016 Per Shri Justice (Dr.) Satish Chandra.
The present Appeal has been filed by the Appellant against Order-in-Original No.33-35/COMMR/CE/KOL-III/2015-16 dated 22.03.2016.
2. Brief facts of the case are that the Appellant is engaged in the manufacture of Acid Slurrry/LUBSA classified under S.H. No.34029011. In the course of manufacture of LABSA, spent Sulphuric Acid is generated as by-product falling under sub-heading No.28070010 of Central Excise Tariff Act, 1985. Assessee has submitted that spent Sulphuric Acid was their by-product hence they were not required to maintain separate account for spent Sulphuric Acid. However, Department by issuing the show cause notice mentioned that by-products were created during the course of manufacture and same are liable to attract duty. Finally, the authority concerned has invoked the provision of Section 11A(4) for willful suppression along with recovery of interest under Section 11AA of the Central Excise Act, 1944 and imposed penalty under Section 11AC of the said Act read with Rule 25 of the Central Excise Rules, 2002. Being aggrieved the Appellant has filed the present Appeal.
3. With this background we have heard Shri B.N.Chattopadhyay, ld.Counsel for the Appellant and Shri S.N.Mitra, ld.Counsel for the Department.
4. Both parties have agreed that the issue has already come up before the Tribunal in the assessees own case in Appeal No.E/459-466/11, where vide Order dated 21.09.2016, the Tribunals observed that :-
4. Heard both sides and perused the case records. The issue involved in the present proceedings is whether Appellant is required to discharge an amount under Rule 6(3)(1)(b) of the Cenvat Credit Rules, 2004 with respect to value at Spent Sulphuric Acid supplied by the Appellant under Notification No.6/2006-CE dated 01.03.2006 at NIL rate of duty. Appellant is clearing Spent Sulphuric Acid on payment of duty when benefit of Notification No.6/2006-CE is not availed. It is observed that this issue stands decided in favour of the assesses as per various case laws relied upon by the Appellants.
5. Finally, by following the ratio laid down by the Honble Allahabad High Court in the case of CCE, Noida v. Lazmi Agro Indl. Consultants & Exporters Ltd. [2011 (274) ELT 176 (All.)], the Tribunal has set aside the impugned order and allowed the Appeal.
6. In view of earlier order (supra), we find no reason to sustain the impugned order passed the lower authority. The same is hereby set aside. Appellant will get consequential relief. Miscellaneous Application is also disposed of.
(Dictated and pronounced in the open court.) SD/ (Justice Dr. Satish Chandra) President SD/ (Ashok K. Arya) Member(Technical) sm 3 Appeal No.E/76272/16