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TMI Blog2010 (1) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase Iron Ore and Metallurgical Coke. For the purpose of using these as basic inputs they are screening the raw materials and during the process of screening, iron ore fines and coke breeze are generated. Both these products are cleared without payment of duty. Department has taken a stand that since the process of screening of Iron Ore and Coke resulting in Iron Ore Fines and Coke Breeze amounts to manufacture and the resultant product namely Iron Ore Fines and Coke Breeze are cleared without payment of duty, it results in situation whereby the appellants are clearing both exempted and dutiable products. Since the appellants do not maintain separate accounts in respect of inputs used in the manufacture of final products and exempted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rallis India Ltd. v. UOI - 2009 (233) E.L.T. 301 (Bom.), the Hon ble Bombay High Court held that manufacturer need not maintain separate accounts if some by-products or waste is generated during the manufacturing process and the same is cleared without payment of duty and duty cannot be demanded under provisions of Rule 57CC of erstwhile Central Excise Rules, 1944. 6. Further he also submits that the decision of the Tribunal in the case of Narmada Gelatines Ltd. v. CCE, Bhopal - 2009 (233) E.L.T. 332 (Tri.-Del.) wherein the Tribunal has followed the ratio laid down by the Hon ble Bombay High Court and in this case a portion of period related to the period when the Rule 57CC no longer was available and the demand had been made under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to him undue hardship has to be established before the Tribunal and it is to be proved on case to case basis. He also submits that the appellants have not established undue hardship in this case. He also relies upon the decision in the case of CCE, Bangalore-III v. McDowell Co. Ltd. - 2005 (186) E.L.T. 145 (Kar.) in support of his contention that the Tribunal has to consider all the issues in detail and justify grant of stay by passing reasoned order to show undue hardship. He submits that in this case no undue hardship has been established. Further, on merit also he submits that the appellant has no case. For this purpose he relied upon the order of the Commissioner where he has stated that the CBEC Circular F.No. 528/50/2003-Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two decisions of Hon ble Supreme Court and also read the relevant paragraphs to show the meaning of undue hardship, Section 35F and implication of prima facie case etc., we note in addition to all these observations and various aspects of law and prima facie case etc., Hon ble Supreme Court had also made very important observations which we cannot ignore under any circumstances. We consider it appropriate to re-produce this observation before we proceed further. The observations found in the decision of the Hon ble Supreme Court in Benara Valves Ltd. case are that Merely because this Court has indicated the principles that does not give a licence to the forum/authority to pass an order which cannot be sustained on the touchstone of fairnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue. The decisions of the Tribunal in the case of Vikram Ispat Ltd. and Aparant Iron Steel Pvt. Ltd. are relating to the products which are the same as one manufactured by the appellants. The decision of the Tribunal in the case of Narmada Gelatines Ltd. follows the decision of the Hon ble Bombay High Court whereby it has been held that by-product or waste arising during the course of manufacture are cleared without payment of duty, provisions of erstwhile Central Excise Rules, 1944 corresponding Rule 6(3)(b) of Cenvat Credit Rules, 2002 are not attracted. However, we find that none of the decisions was cited before the learned Commissioner nor were considered by him while passing the order. Further guidelines issued by the Board in CBEC M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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