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TMI Blog2017 (4) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... ndran, Member (Judicial) And Mr. Devender Singh, Member (Technical) Shri Gajendra Jain, Advocate, for appellant Shri Ashutosh Nath, Assistant Commissioner (AR), for respondent ORDER Per M.V. Ravindran All these appeals are disposed of by a common order as the issue involved is the same and in respect of the very same assessee for different periods. 2. Appeal No. E/85851/14 of the very same assessee and on the same issue was not listed and on prayer of both sides, the appeal papers were called from the Registry. On perusal of the said records of this appeal E/85851/14, we find the issue is same. Accordingly, we also dispose of the said appeal by this common order. 3. The relevant facts that arise for consideration are the appellant herein is a manufacturer of bulk drugs falling under Chapter 29 of the Central Excise Tariff Act, 1985 and imports various solvents like acetone, ethyl acetate, methanol, toluene, tetrahydrofuron, dimethyl formamide, acetonitrile etc. and also procures the same indigenously without payment of duty. The solvents are used by the appellant for undertaking a chemical process and at the end of the process, the said solvents come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rejected by a speaking order as reported at 2010 (259) ELT 673 (AP) and it was maintained by the apex court as reported at 2011 (269) ELT A147 (SC). He would submit that similar issue of spent solvents came up before the various Benches and of them the recent one being CCE, Hyderabad vs. Lee Pharma Pvt. Ltd. reported in 2010 (252) ELT 557 , wherein following decision of Aurobindo Pharma Ltd, it was held in favour of the assessee. He would also rely upon the judgment of the apex court in the case of UOI vs. DSCL Sugar Ltd. reported in 2015 (322) ELT 769 (SC) for the proposition that post 10.5.2008, the provisions of Section 2(d) of the Central Excise Act, 1944 may also not apply as the Hon ble Supreme Court has clearly laid down the law as to when the provisions of Section 2(d) will be attracted. 5. Learned departmental representative, on the other hand, would submit that the process undertaken by the appellant would amount to manufacture as the solvents which are used once come out in the form of mother liquor at different stages. These solvents are recovered by using recovery system/distillation process and the said solvents are used in the production process. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is undisputed that the mixture of solvents, which is cleared by the appellant, is mixture solvents obtained after considerable reuse, which cannot be reused by the appellant in their factory premises and the said solvents are cleared on the invoices from the factory premises of the appellant. It is also undisputed that the appellant was discharging duty liability on this mixture/spent solvents prior to September 2006 but subsequently did not discharge the central excise duty by relying upon the judgment of the Tribunal in the case of Aurobindo Pharma Pvt. Ltd. 8. On perusal of the records, we find that the goods which are cleared by the appellant are mixture of solvents which have been reused in the factory premises over a period of time for the manufacturing of final products i.e. bulk drugs. It is also not disputed by the Revenue in the impugned orders that the solvents are repeatedly used after purification within the factory premises and they get mixed up with various impurities and at a stage when they cannot be reused, they are cleared by the assessee for a consideration. In short, clearances of the mixed solvent, which is done from the factory premises, is the residu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the ratio would apply in the case in hand and the demands raised prior to 10.5.2008 needs to be set aside. 9. As regards the demands raised by the Revenue post 10.5.2008 for which duty provisions of Section 2(d) has been invoked, needs to be addressed now. The said provisions of Section 2(d) defines excisable goods and states that for the purposes of this sub-section, goods includes any article, material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable. In the cases in hand, from Appeal No.86521 to 86526/13, 85825/14 and 85851/14, the period involved is post 10.5.2008. Even with the enactment of provisions of Section 2(d) of the Central Excise Act, 1944, the demand raised on the appellant does not get fastened for the simple reason that the show cause notice does not invoke the provisions of Section 2(d) of the Central Excise Act, 1944. All the show cause notices are alleging that the process that is carried out for the purification of the mixed solvents amounts to manufacture as per the provisions of Section 2(f) of the Central Excise Act, 1944. Since the said proposition is already decided by the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arketable and thus excisable. 8. However, before the aforesaid fiction is to be applied, it is necessary that the process should fall within the definition of manufacturer as contained in Section 2(f) of the Act. The relevant portion of amended Section 2(f) reads as under : Section 2(f) - manufacture includes any process - (i) incidental or ancillary to be completion of a manufactured product; (ii) which is specified in relation to any goods in the section or Chapter notes of [The First Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to [manufacture; or] (iii) which in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer; and the word manufacture shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production of manufact ..... 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