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TMI Blog2009 (3) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... t. At the appellate stage, the learned Commissioner (Appeals) following the various decisions of the Tribunal held in favour of the respondents/assessees. Hence, these appeals are filed by-the Revenue. Held that- In our considered opinion, the excisability in the product goods would decide the leviability of excise duty. If product ‘spent solvents’ are considered as non-excisable, the question of discharge of excise duty on them does not arise. Thus As the Commissioner (Appeals) has correctly come to the conclusion that the spent solvent in all these cases are not excisable products, the ratio of the decisions cited by the learned Counsel covers the issue in favour of the assessee/respondent, accordingly, respectfully following the same, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cturers of Bulk Drugs and Bulk Drug Intermediates. During the course of manufacture of Bulk Drugs waste Industrial solvent/Recovered solvents arise. The lower authorities during the scrutiny of the records found that the respondent have sold certain quantities of spent solvents without payment of duty and has cleared the same in the guise of waste Industrial solvents. Show cause notices were issued to respondent. At the appellate stage, the learned Commissioner (Appeals) following the various decisions of the Tribunal held in favour of the respondents/assessees. Hence, these appeals are filed by-the Revenue. 3. The main grounds raised by the Revenue in their grounds of appeal are: 3.1 The Commissioner (Appeals) appears to have erred in up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically mentioned that: "within any one heading of this Chapter, derivatives of a Chemical compound (or group of chemical compounds) are to be classified in the same sub-heading as that compound (or group of chemical compounds) provided that they are not more specifically covered by any other sub-heading and that there is no residual sub-heading named "other" in the series of the sub-headings concerned". 3.4 Therefore in terms of the above Chapter note, the derivatives of Toluene are classifiable under chapter heading No. 2902.30 of the Schedule to the Central Excise Tariff Act, 1985. This classification of Toluene is confirmed in the Hon'ble Tribunal's Order in the case of M/s. Polychem Ltd. v. CCE, reported in 1995 (75) E.L.T. 919 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bad-IV v. Sreepathi Pharmaceuticals Ltd. - 2006 (205) E.L.T. 273 (Tri.-Bang.), CCE, Hyderabad-III v. Natco Pharma Ltd. - 2007 (208) E.L.T. 573. It is his submission that in all these cases, the learned Commissioner (Appeals) has held that the spent solvents are not excisable. It is his submission that excisability of the goods leads to the root of the issue and hence, the learned Commissioner (Appeals) has correctly decided the issue. 6. We have considered the submissions made at length by both sides and perused the records. We find that in the case of the respondent i.e. Aurobindo Pharma Ltd. (supra), this Bench has held that the issue in favour of respondent and hence the issue is no more res integra. Further, it is also seen that in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility is fundamental to the matter, the Commissioner (A) was justified in taking up this issue and deciding it in the light of the earlier judgment. There is no merit in this appeal and the same is rejected." 8. It is also seen that this judgment of the Tribunal is a recent judgment given in 2008 and was following various judgments of the Tribunal. 9. As the learned Commissioner (Appeals) has correctly come to the conclusion that the spent solvent in all these cases are not excisable products, the ratio of the decisions cited by the learned Counsel covers the issue in favour of the assessee/respondent, accordingly, respectfully following the same, we find that the issue being no more res integra, the appeals filed by the Revenue are devoi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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