2013 (11) TMI 1135 - AT - Central Excise

Waiver of Pre-deposit - Payment of 8% or 10% on the price of Spent Sulphuric Acid Goods cleared without payment of duty Exemption under Notification No. 6/2002 Held that - Following Commr. of Central Excise, Ahmedabad-III Vs. Nirma Ltd. 2012 (10) TMI 138 - GUJARAT HIGH COURT - in case of exempted by-product emerging during the process of manufacture, the provisions of Rule 6 of Cenvat credit Rules are not attracted - The applicants are able to make out a prima facie case for total waiver of pre deposit of the dues till the disposal Stay granted.

Summary

Issues:
Seeking waiver of pre-deposit of duty and penalty imposed under Section 11AC of CEA, 1944 for clearance of Spent Sulphuric Acid to fertilizer unit without payment of duty.

Analysis:
The appellant, engaged in the manufacture of "Acid Slurry," used inputs like "Linear Alkyl Benzene" and "Sulphuric Acid," generating Spent Sulphuric Acid as a by-product. While duty was discharged for home consumption clearance of Spent Sulphuric Acid, duty exemption under Notification No. 6/2006-CE was availed for clearance to a fertilizer unit. The issue revolved around whether 8% or 10% on the price of Spent Sulphuric Acid should be paid, as per Rule 6(3)(b) of Cenvat Credit Rules, 2004. The appellant cited the judgment of the Hon'ble High Court at Gujarat in the case of Commr. of Central Excise, Ahmedabad-III Vs. Nirma Ltd., supporting their position.

The Revenue's representative reiterated the Ld. Commissioner (Appeals)'s findings but failed to present any contradictory judgment. Upon hearing both sides and examining the records, the Tribunal observed that the issue at hand was previously addressed by the Hon'ble High Court of Gujarat in favor of the assessee. Consequently, the Tribunal found that the appellant established a prima facie case for the total waiver of the pre-deposit of dues adjudged. Therefore, the Tribunal granted the waiver and stayed the recovery of all dues during the pendency of the appeals.