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TMI Blog2009 (5) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured and cleared from. 03/2005. Hence, a show cause notice dated was issued for demand of duty of Rs. 17,83,576/- and for imposition of penalty and interest, The ‘Adjudication authority’ extended the benefit of notification No. 89/95 C.E. dated 18-5-1995 and dropped all other proceedings.”The Commissioner of Central Excise, Hyderabad reviewed the OIO and directed an appeal be filed before Commissioner (Appeals). The appeal was rejected by the Commissioner (Appeals). Held that- we find that the soap stock which arises/emerges during the refining of vegetable oil is a waste for the respondents, though the Revenue may call it as a by-product. Accordingly, on merits as well as on the law, the Revenue (Appeals) is devoid of merits and are liable to be rejected and we do so. - E/374, 385 and 294/2008 - 734-736/2009 - Dated:- 13-5-2009 - S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) Ms. Joy Kumari Chander, JCDR, for the Appellant. Ms. Kusum Ranganath, Advocate, for the Respondent. [Order per: M.V. Ravindran, Member (J)]. - All these three appeals are directed against OIA No. 01/2008 (H-IV) (D) C.E. dated 14-2-2008. Since the issue involved in al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduct and claimed exemption from payment of duty in terms of FOI Notification No. 89/95-C.E. The 'Adjudication authority' relied on the decision of the Hon'ble CESTAT, Delhi bench in the case of Commissioner of C.E., Raipur v. Hindustan Steel Works Construction Ltd. [2005 (179) E.L.T. 85 (Tri.-Del.], wherein it was laid down that the benefit of exemption to waste arising during the manufacture of exempted products is available as long as the assessee is not manufacturing any other excisable goods other than exempted goods. He concluded that the by-product viz., soap stock is specifically classifiable under 1522.00 20 of the CETH and leviable to duty at the rate applicable in the tariff as long as the assessee is not eligible for the benefit under Notification No. 89/95-C.E. Once the assessee claims the benefit under Notification No. 89/95-C.E. and he is found eligible the exemption granted in terms of Section 5A of the Central Excise Act, 1944 prevails and it has to be extended as, soap stock which is nothing but waste arising during the manufacture of exempted excisable goods viz., refined vegetable oil and is covered under the schedule to the Central Excise Tariff Act, 1985'. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit of exemption under Notification No. 89/95-C.E. cannot be extended to the above bye-products as they are having distinctive characteristics and commercial uses of their own and cannot be treated on par with Waste, scrap or parings. 3. Based on the above observations, an appeal was filed by the Department against O-I-O No. 11/2007 dated 11-6-2007. Now the Commissioner (Appeals) vide his OIA No. 19/2007 (H-IV) (D) C.E. dated 31-12-2007 rejected the Department's appeal on the grounds that the matter cannot be reopened as the earlier OIO was accepted by the department without going into the merits of the case i.e. extending the benefit of Notification No. 89/95-C.E. to the by-products viz. Soap,// Stocks and wax is not correct." 4. They would also submit that the soap stock which has arisen during the course of oil refining is a by-product and it fetches a good market value. It was also submitted that exemption under Notification No. 85/95 cannot be extended to the by-products as they are having definitive characteristic and commercial uses. It was urged that, the impugned order be set aside and their appeals be allowed. 5. Learned JCDR would rely upon the decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd an appeal being not filed in another case and also when there are divergent views expressed by the Tribunal or High Court. In the case before us we find that in respect of both the respondents, an identical issue was raised and lower authorities have held in favour of the respondents. These earlier Orders were reviewed by high authorities in Commissionerate and a conscious decision was taken not to file an appeal against the said Order by the Higher Authorities, who reviewed the orders. On this background, we find that, the decision of the Hon'ble Apex Court in the case of CCE v. Surcoat Paints Ltd. , 2008 (232) E.L.T. 4 (S.C.) is directly on the point. We also find that the Hon'ble Supreme Court in the following cases has clearly held that if an identical issue is decided in case of an assessee, revenue cannot be permitted to take opposite stand in other cases. (1) Birla Corporation Ltd. v. CCE - 2005 (186) E.L.T. 266 (S.C.) (2) Jayaswals Neco Ltd. v. CCE - 2006 (195) E.L.T. 142 (S.C.) = 2007 (8) S.T.R. 30 (S.C.) (3) CCE v. Bigen Industries - 2006 (197) E.L.T. 305 (S.C.) (4) CCE v. Amar Bitumen Allied Industries - 2006 (202) E.L.T. 213 (S.C.) (5) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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