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TMI Blog2010 (7) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... , spent sulphuric acid emerges which is classifiable under chapter sub heading 28070010. The said bye-product is cleared on payment of duty and also cleared at nil rate of duty under notification No.4/2006-CE dated 1.3.06 which exempts sulphuric acid, oleum, oxygen and ammonia from payment of duty if used in the manufacture of fertilizers and where such use is elsewhere than in the factory of production, the exemption shall be allowed if procedure set out in the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001 is followed. The respondents had cleared the goods in question, viz., spent sulphuric acid, at nil rate of duty for use in the manufacture of fertilizers by following the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n amount equivalent to 10% of the price of the spent sulphuric acid cleared at nil rate of duty as per the provisions of rule 6(3)(b) of the Cenvat Credit Rules, 2004. 5. In view of the above provisions of law show cause notices were issued to both the respondents seeking confirmation of demand of duty and imposition of penalty. In the case of Nirma, the said show cause notice culminated into an order passed by the adjudicating authority confirming demand of duty of ₹ 2,92,671/-. However the show cause notice issued to M/s. Nisarg Enterprise Pvt. Ltd. was dropped by the Assistant Commissioner and an appeal their against was filed before Commissioner (Appeals). 6. As the Commissioner (Appeals) has held in favour of the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % of transaction value under Rule 6 of Cenvat Credit Rules, 2004. There is no dispute that the spent acid is a bye-product arising in course of manufacture of detergent products. Further, we find that this issue was considered by the Hon ble High Court of Bombay in the case of Rallis India Ltd. Vs. Union of India reported in 2009 (233) ELT 301 (Bom) and this Tribunal also had considered the issue in the case of JK Malt Products Pvt. Ltd. Vs. Commissioner of Central Excise, Ahmedabad - 2009 (92) RLT 839 (CESTAT - Ahd). We find that the issue is squarely covered by both the decisions cited above as against the Tribunal s decision in the case of respondent. Before closing, we are compelled to observe that in periodical show cause notices, pena ..... X X X X Extracts X X X X X X X X Extracts X X X X
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