2011 (4) TMI 379 - AT - Central Excise

Demand - Classification - notification No.4/2006-CE dated 1.3.06 - Rule 6(3) of MODVAT Credit Rules - Bye product is cleared without payment of duty - Separate accounts are not maintained - Held that issue is no res integra and stand settled by earlier order of the Tribunal in same appellant s case being Order No.A/2350/WZB/ AHD/2009 dt.12.11.09 - Held that Commissioner(Appeals) s reference to Hon ble Supreme Court s judgment in the case of M/s Nirma Chemical Works was on altogether different ground as it dealt with classification of Spent Sulphuric Acid and has got nothing to do with the provisions of Rule 6(3) of MODVAT Credit Rules - Appeal is allowed

Summary

Issues:
- Classification of spent sulphuric acid as a dutiable or exempted product under the Central Excise Tariff Act, 1985.
- Requirement of maintaining separate accounts for inputs used in the final product.
- Application of Rule 6(3)(b) of Cenvat Credit Rules, 2004 to reverse 10% of the value of exempted goods.
- Adjudication of Show Cause Notices, penalty, and interest under Central Excise Act, 1944.
- Appeal filed by Revenue before Commissioner(Appeals) challenging the original adjudicating authority's order.

Classification of Spent Sulphuric Acid:
The appellants were engaged in manufacturing Detergent Cakes/Powders and Fertilizers, with spent sulphuric acid emerging as a by-product. The spent sulphuric acid was cleared at nil rate of duty for use in fertilizer manufacturing under notification No.4/2006-CE. The department contended that since separate accounts were not maintained for inputs used in the final product, 10% of the value of exempted clearance of spent sulphuric acid needed to be reversed under Rule 6(3)(b) of Cenvat Credit Rules, 2004.

Adjudication of Show Cause Notices:
Show Cause Notices were issued to the appellants for not maintaining separate accounts of inputs used in the final product, proposing reversal of 10% of the value of exempted goods under Rule 6(3)(b) of Cenvat Credit Rules, 2004. The impugned orders confirmed recovery with interest and imposed penalties equal to the demand. The Revenue filed an appeal before Commissioner(Appeals) after being aggrieved by the original adjudicating authority's decision.

Application of Previous Tribunal Orders:
The issue was found to be settled by an earlier order of the Tribunal in the same appellant's case. The Commissioner(Appeals) observed that the issue was covered by the Tribunal's previous decision and granted unconditional stay. However, the appellate authority did not follow the earlier order and differed in opinion, leading to the present appeal. The Tribunal set aside the impugned order and allowed the appeal, providing consequential relief to the appellant.

Conclusion:
The Tribunal's decision focused on the classification of spent sulphuric acid, the requirement of maintaining separate accounts, and the application of Cenvat Credit Rules. It emphasized the importance of following judicial discipline and higher appellate forum decisions. The judgment ultimately favored the appellant, setting aside the impugned order and granting relief.