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TMI Blog2013 (5) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... e being cleared by the respondent without payment of duty. The sponge iron being manufactured by the respondent was being cleared on payment of duty. Since for bringing the iron ore and other inputs to the factory of the respondent DTA services were used in respect of which cenvat credit of Rs.1,00,510/- had been availed, the department was of the view that the respondent did not exercise option of maintaining separate account and inventory of input services used for manufacture of the excisable and exempted final product and taking credit only on such quantity of input services were actually used for manufacture of sponge final products in respect of clearances of iron ore fine, the provisions of Rule 6(3) of the Cenvat Credit Rules, 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used for exempted final product as well as dutiable final product, in respect of clearances of exempted final product - iron ore, fine the provisions of Rule 6(3)(b) of Cenvat Credit Rules, 2004 would be attracted. He therefore, pleaded that Commissioner (Appeals)'s findings that on the iron ore fine as not excisable goods is not correct. Shri Mathur also pleaded that the extended period has been correctly invoked as clearances of iron and ore fines were not declared in the ER-1 returns. 4. Shri Piyush Kumar, Advocate, the ld. Counsel for the respondent pleaded that iron ore fine emerges as an inevitable waste in course of sieving iron ore before being used in the manufacture of sponge iron even in this case, if the respondent want, they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 6(2) is impossible. The provisions of Rule 6(3)(b) of Cenvat Credit Rules, 2004 become applicable only if the manufacturer consciously manufactures dutiable and exempted final product using common cenvat credit availed inputs and/or input services and does not comply with the provisions sub-rule (2) of Rule 6 of Cenvat Credit Rules, 2004. It would not apply in a case like this when the exempted final product emerges as an unavoidable waste or by-product and compliance with the provisions of Rule 6(2) is impossible. In the case of Rallis India Ltd. (supra) the Hon'ble Bombay High Court held that in such circumstances, the provisions of Rule 6 (2) would not be applicable. In view of this, I hold that there is no infirmity in the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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