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TMI Blog2012 (8) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... hat since common inputs have been used leading to production of the aforementioned dutiable goods as also press mud and sludge on which no duty is payable, the appellants should pay 10% or 5% as applicable during the relevant period from April 2008 to September 2010 in terms of CENVAT Credit Rule 6(3)(i). 3. Shri K. Mani, learned consultant, appearing for the appellants states that 10% / 5% is payable only on the finished products manufactured by the appellants and not on by-products and waste like press mud and sludge. He cites the following decisions in support of his argument:- (i) Rallies India Ltd. Vs. Union of India - 2009 (233) ELT 301 (Bom.) (ii) Sterling Biotech Ltd. Vs. CCE, Salem (iii) Vishal Pipes Vs. CCE, Noida - 2010 (25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be held to be marketable and consequently they cannot be considered to be excisable as 'excisability implied manufacture and marketability'. However, the main definition of 'excisable goods' under Section 2(d) is as under:- "Excisable goods means goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as being subject to a duty of excise and includes salt". The definition itself implies that goods must be specified in the First Schedule or Second Schedule of the CETA, 1985, and the same should be subjected to a duty of excise. In the instant case, no doubt, the impugned items namely press mud and sludge are specified in the First Schedule to the CETA against Heading Nos.230 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are used in manufacture of dutiable and exempted products, the liability to pay the amount of 8% as it was applicable at the relevant time would arise only for final products and not for waste. This decision of the Hon'ble Bombay High Court has been applied by this Bench in the case of M/ s. Sterling Biotech (supra). In the case of Vishal Pipes (supra), the Division Bench of the Tribunal has also referred to the Board's Circular No. 345/61-97-CX dated 23.10.1997 to the effect that there should be no denial of credit even if a part of an input is contained in scrap, waste, residue etc. notwithstanding the fact that the erstwhile Rule 57D was no longer in force. 7. Further, paragraph 3.7 in Chapter 5 of the CBEC's Central Excise Manuel (sic) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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