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2024 (9) TMI 837 - HC - Central ExciseJurisdiction - Tribunal acted as the appellate authority under Section 35C of the Central Excise Act, 1944 properly or not - Hon'ble Tribunal does not explicitly address/verify whether oxygen manufactured from the plant of the Respondent was used in the manufacture of Sulphuric Acid - non-speaking order - N/N. 67/95-CE dated 16.03.1995. HELD THAT - he Tribunal has rightly held that the issue raised in the appeals are no more res integra as the same has already been settled by the Hon ble Supreme Court in the case of UNION OF INDIA OTHERS VERSUS M/S. HINDUSTAN ZINC LTD. 2014 (5) TMI 253 - SUPREME COURT which is followed by the Tribunal in the case of STERLITE INDUSTRIES INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, TIRUNELVELI 2015 (11) TMI 1247 - CESTAT CHENNAI . The Tribunal has, extracted the relevant observations from the decision in the case of Sterlite Industries India Ltd, wherein the decision of the Hon ble Supreme Court is also referred to and it was held that ' The only condition is that sub-rule (2) of Rule 6 of CCR is required to be complied with. In the present case, as per sub-rule (2), appellant manufactured oxygen used in the manufacture of excisable product and they had no obligation to maintain separate accounts for oxygen used in the manufacture of Sulphuric Acid. It is established that appellant did not use oxygen produced in the manufacture of Sulphuric Acid. Accordingly, conditions of Notification No. 67/95 are complied. ' The Tribunal, in the case of Sterlite Industries India Ltd has considered that the waste gas which emerges out of process of purification of copper concentrate in Sulphur Dioxide which is further converted into Sulphur Trioxide which is absorbed in Sulphuric Acid to form Oleum and this Oleum is dissolved in water to get purest form of Sulphuric Acid. The Tribunal has also referred to the various provisions of the Environment (Protection) Rules, 1986 which provides that it is mandatory for the respondent to prevent emission of oxides of sulphur in Smelter and Convertor of copper and it stipulates that waste gases are to be utilized in the manufacture of Sulphuric Acid so as to prevent emission of Sulphur Dioxide. Thus, the findings of fact recorded by the Tribunal in the impugned order cannot be termed as perverse or contrary to the evidence on record. In the overall view of the matter, it is convincing that the decision of the Tribunal is correct and requires no interference. Appeal dismissed.
Issues Involved:
1. Whether the Tribunal properly acted as the appellate authority under Section 35C of the Central Excise Act, 1944. 2. Whether the Tribunal's order is a speaking order. 3. Whether the Tribunal correctly relied on the decisions in the cases of Union of India vs. Hindustan Zinc and Sterlite Industries India Ltd. vs. CCE. 4. Whether oxygen manufactured and used in the manufacture of sulphuric acid (cleared at nil rate) is exempt from excise duty under Notification No. 67/95-CE dated 16.03.1995. Issue-wise Detailed Analysis: Issue 1: Tribunal's Role as Appellate Authority The appellant contended that the Tribunal did not explicitly address or verify whether the oxygen manufactured by the respondent was used in the manufacture of sulphuric acid. However, the Tribunal, acting under Section 35C of the Central Excise Act, 1944, considered the manufacturing process and concluded that the oxygen produced was used in the manufacture of Copper Cathodes, not directly in the manufacture of sulphuric acid. The Tribunal's findings were based on the manufacturing process explained by the respondent, which showed that the oxygen was used in the furnace and smelter converter to remove impurities from copper concentrate, and not in the conversion of sulphur dioxide to sulphur trioxide. Issue 2: Speaking Order The appellant argued that the Tribunal's order was not a speaking order. The Tribunal's decision, however, included detailed reasoning and references to previous judgments, specifically the Supreme Court's decision in Union of India vs. Hindustan Zinc Ltd. and the Tribunal's own decision in Sterlite Industries India Ltd. vs. CCE. The Tribunal thoroughly explained the manufacturing process and the use of oxygen, thereby addressing the core issues raised by the appellant. Hence, the order qualifies as a speaking order. Issue 3: Reliance on Precedents The Tribunal relied on the Supreme Court's decision in Union of India vs. Hindustan Zinc Ltd., which held that sulphuric acid, produced as a by-product, does not qualify as a final product for the purposes of excise duty exemptions. The Tribunal also referred to its own decision in Sterlite Industries India Ltd. vs. CCE, which involved similar facts and legal issues. The reliance on these precedents was appropriate as they provided a clear legal basis for the Tribunal's decision. Issue 4: Exemption under Notification No. 67/95-CE The appellant contended that the oxygen used in the manufacture of sulphuric acid, which is exempt from excise duty, should not be eligible for exemption under Notification No. 67/95-CE. The Tribunal, however, found that the oxygen produced was used in the purification of copper concentrate to produce Copper Cathodes, and not directly in the manufacture of sulphuric acid. The Tribunal noted that the sulphur dioxide, a by-product of the purification process, was converted into sulphuric acid as a mandatory environmental measure. The Tribunal concluded that the oxygen used in the manufacture of Copper Cathodes qualifies for exemption under Notification No. 67/95-CE, as the final product, Copper Cathodes, is excisable and cleared on payment of duty. Conclusion The High Court upheld the Tribunal's decision, stating that the Tribunal had correctly applied the law and relied on relevant precedents. The Tribunal's findings were not perverse or contrary to the evidence on record. Consequently, no substantial question of law arose from the Tribunal's order, and the appeal was dismissed.
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