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TMI Blog2015 (7) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... as has been held in the decision of the Supreme Court and assuming it is a waste, refuse or by-product, it is chargeable to nil rate of duty, Rule 57D provides for taking credit. There is yet another factor which needs to be considered is that part of the Spent Sulphuric Acid, which is a by-product in the manufacture of the final product, namely, Acid Slurry, is cleared on payment of duty and part of it is cleared at nil rate of duty under Chapter X procedure in terms of Notification No. 8/96-CE dated 23.7.1996 and Notification No.4/97-CE dated 1.3.97. Therefore, the provisions of Rule 57D get squarely attracted to the present case and the Department shall not deny the credit of specified duty whether or not such waste or refuse is exempt from whole of the duty of excise leviable thereon or chargeable to nil rate of duty. - Decision in the case of Union of India v. Hindustan Zinc Ltd. [2014 (5) TMI 253 - SUPREME COURT] - Decided against Revenue. - C.M.A. No. 285 of 2007 - - - Dated:- 18-6-2015 - R. Sudhakar And K. B. K. Vasuki,JJ. For the Appellant : Mr. A. P. Srinivas For the Respondents : Mr. P. R. Renganath for M/s. Raghavan JUDGMENT ( Delivered By R. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the decisions in the case of Varuna Sulphonators Pvt. Ltd. V. UOI (1993 (68) ELT 42 (Allahabad) and Jaydee Agro Chemicals Private Ltd. (1996 (84) ELT 354) and came to the conclusion that the argument of the lower authority that Spent Sulphuric Acid was not a by-product or waste or residue was therefore, not tenable. 5. With regard to the credit of duty required to be reversed in respect of Sulphuric Acid contained in the Spent Sulphuric Acid, which has been cleared without payment of duty by availing exemption under Notification 8/96-CE dated 23.7.1996 and Notification No.4/97-CE dated 1.3.97, the Commissioner (Appeals), by placing reliance on the decisions in the case of Tamil Nadu Industrial Explosives Ltd. (1996 (14) RLT 479) and in the case of Sarchem Surfactanta Pvt.Ltd. (1996 (87) ELT 105), held as follows: 5. As regards whether credit of duty is required to be reversed in respect of Sulphuric acid contained in the Spent Sulphuric acid which they had cleared without payment of duty by availing exemption under Notification No.8/96-CE and 4/97-CE, no such duty is required to be reversed under the provisions of Sub-rule (1) of Rule 57D which lays down that the credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty credit is not deniable in relation to SS Acid vide the Tribunal's larger bench decision in Collector Vs. Keti Chemicals, 1999 (113) ELT 689, and the Allahabad High Court's decision in Varuna Sulphanators (supra) was followed by the Tribunal in Southern Petrochemical Industries Vs. CCE Madras, 2002 (148) ELT 1012 (Tri - Chennai) and that the Civil Appeal filed by M/s.Southern Petrochemical Industries against the Tribunal's decision was dismissed by the Supreme Court vide 2003 (152) ELT A 96 (SC). When both the main product and the by-product were dutiable, the assessee was eligible for input duty credit on the entire quantity of 98% Sulphuric Acid and it was not open to the department to ask them to reverse any part of such credit already taken. We, therefore, do not find any merit in the Revenue's appeals, which are dismissed. 6. Following the above decision we sustain the impugned orders and reject the appeals of the Revenue. 7. Aggrieved by the order of the Tribunal, the Department is before this Court by filing the present appeal raising the above-mentioned question of law. 8. Mr.A.P.Srinivas, learned Standing Counsel appearing for the appellant su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as various other documents which were filed by the respondents in the courts below. It is also a common case of the parties that Hindustan Zinc Limited and Birla Copper were established to produce zinc and copper respectively and not for the production of sulphuric acid. It was argued by the learned Counsel for the respondents, which could not be disputed by the learned Solicitor General, that emergence of sulphur dioxide in the calcination process of concentrated ore is a technological necessity and then conversion of the same into sulphuric acid as a non-polluting measure cannot elevate the sulphuric acid to the status of final product. Technologically, commercially and in common parlance, sulphuric acid is treated as a by-product in extraction of non-ferrous metals by companies not only in India but all over the world. That is the reason why the department accepted the position before the Tribunal that sulphuric acid is a by-product. In these circumstances the position taken now by the appellant that sulphuric acid cannot be treated as a by-product cannot be countenanced. Mr. S.K. Bagaria, learned Senior Counsel appearing for the respondent while explaining the manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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