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TMI Blog2013 (12) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... e been used upto the stage of crushing of Iron Ore at which stage Iron Ore Fines emerge, on this very ground itself, the demand under Rule 6(3) would be liable to be set aside. Moreover in this case, even if, there are some common inputs/input services and the assessee wants to comply with the provisions of sub-rule (2) of Rule 6 by maintaining separate account and inventory of input and input services meant for dutiable and excisable product, it is not possible as the Iron Ore Fines emerge as an unavoidable and inevitable byproduct. The provisions of Rule 6(2) read with Rule 6(3) cannot be interpreted to cast an obligation on an assessee which is impossible and thereafter penalize him for failure to discharge an impossible obligation - Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereon. The show cause notice also sought imposition of penalty on the respondent. The show cause was adjudicated by the Addl. Commissioner vide order-in-original dated 29.09.2010 by which the demand, as mentioned above under Rule 6(3), was confirmed along with interest and penalty of equal amount was imposed on the respondent. On appeal to the Commissioner (Appeals), this order of the Addl. Commissioner was set aside vide order-in-appeal dated 23.2.2011 holding that the emergence of Iron ore fines in crushing of Iron Ore does not amount to manufacture and as such Iron Ore fines is not a manufactured excisable product and, therefore, Rule 6(3) read with Rule 6(2) would not be applicable. Against this order of the Commissioner (Appeals), thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -rule (2) and (3) of Rule 6 would not be applicable, that in any case, Iron Ore Fines emerge at the stage of crushing of Iron Ore when fines are taken out/screened out from the raw materials handling plant, that neither the show cause notice nor the order-in-original mentioned that upto this stage, which common inputs or input services in respect of which cenvat credit had been availed, have been used, that when the department does not even mention as to which common inputs /input services have been used upto the stage of crushing of Iron Ore , the provisions of Rule 6(3) cannot be applied and that in view of this, there is no infirmity in the impugned order. He also pleaded that Revenue in its appeal has relied upon the judgment of the Lar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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