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TMI Blog2016 (11) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... non-conventional sources i.e. from agro waste. Accordingly, it is entitled to the exemption of excise duty in terms of Notification No.6/2002-CE dt. 1.3.2002 in terms of List 9 appended to Sl.No.237 of the said Notification. Appeal No.E/263/2012 has been filed by Revenue when Commissioner (Appeals) granted benefit of the notification to the assessee and appeal No.E/95/2008 came up from assessee for denial of the said benefit. 2. Explaining the details of the technicalities of the goods, it is submitted by ld. counsel that these goods are capable of using the non-conventional resources as well as thermal and oil resource for producing energy. So far as oil resource is concerned, appellant has not claimed exemption benefit in terms of the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal before Commissioner (Appeals) and that authority rightly denied the exemption benefit to the appellant holding that appellant has not manufactured the goods which uses the agricultural waste for producing energy. 7. Heard both sides and perused the record. 8. We have thoroughly examined the show cause notice, adjudication order as well as appellate orders in these two appeals. There is divergence of assertions in all the three documents. There is no dispute over the nature of goods manufactured by the appellant. But the controversy is whether such goods are capable of using agro waste to produce non-conventional energy. To resolve such controversy, Notification No.6/2002-CE dt. 1.3.2002 was examined. It is observed that the object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the amount calculated at the rate specified in the corresponding entry in column (5) of the said Table, subject to the relevant conditions specified in the Annexure to this notification, and referred to in the corresponding entry in column (6) of the said Table : Provided that nothing contained in this notification shall apply to goods falling under sub-heading No. 3605.10 against S. Nos. 65, 66, 67 and 68 of the said Table on or after the 1st day of April, 2002 : Provided further that nothing contained in this notification shall apply to the goods specified against S. Nos. 193, 195, 199 and 200 of the said Table on or after the 1st day of March, 2005. Explanation. - For the purposes of this notification, the rates specified in colu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 20 above." 9. When the SCN is read, it does not show whether the goods manufactured by the appellant was incapable of using the agricultural waste to produce energy. Adjudicating authority considered the pleading of the appellant and going through the technical literature, noticed that there is no contrary evidence brought out by Revenue to deny the exemption benefit. The appellate authority in appeal No.E/95/2008 without thoroughly examining the matter in controversy, went by the technical literature and held against appellant in absence of allegation in SCN as to incapability of goods manufactured by the appellant to use agricultural waste for production of energy. The reverse is the decision of the same authority in appeal No.E/263/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. But the spirit of the notification in question appears to be beneficial in nature. Revenue failed to demonstrate that the device is not capable of using agricultural waste. That suffices to hold that the goods of the appellant are eligible to the notification benefit. Appeal of assessee is therefore allowed setting aside the appellate order of the authority below. APPEAL No.E/263/2012 14. Revenue is in appeal in appeal Case No.E/263/2012 on self same facts as is dealt in appeal No.E/95/2008. When assessee succeeded before Commissioner (Appeals) on the same issue who took a view that the assessee is entitled to the notification benefit, Revenue being aggrieved by that order has come in appeal to Tribunal. The result of the order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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