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TMI Blog2018 (3) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... ial) And Mr. Madhu Mohan Damodhar, Member (Technical) Shri K. Nagaraja Rao Ms Spoorthi, Advocates for the Appellant Shri Tarun Kanti Basu Kanchan Kanti Nandi, Assistant Commissioners (ARs) for the Respondent ORDER [ Order Per : Bench ] All these appeals are being disposed of by a common order as the issue that is raised in all these appeals being the same. 2. The details of the appeals are: Sl. No. Appeal No. Appellant Respondent Impugned Order 1. E/27829/2013 Aurobindo Pharma Ltd., Commissioner of Central Excise, Customs and Service Tax, Hyderabad-I OIA No. 72 to 75/2013 (H-I) CE dated 31.07.2013 2. E/27830/2013 Aurobindo Pharma Ltd., Commissioner of Central Excise, Customs and Service Tax, Hyderabad-I OIA No. 72 to 75/2013 (H-I) CE dated 31.07.2013 3. E/27831/2013 Aurobindo Pharma Ltd., Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue against the common order of the Customs, Excise Service Tax Appellate Tribunal, South Zonal Bench, Bangalore, (CESTAT), dated 19-3-2009, in Final Order Nos. 578 to 582 of 2009 [2010 (249) ELT (Tribunal)]. By the said order, CESTAT dismissed the appeals filed by the respondent herein, affirming the common order of the Commissioner of Customs Central Excise (Appeals) being Order-in-Appeals dated 5-4-2007. 2. The respondent, M/s. Aurobindo Pharma Ltd., (APL) have their units in different areas surrounding Hyderabad. They are a company engaged in the manufacture of bulk drugs and bulk drug intermediaries. In the process of manufacture, they use considerable varieties of solvents like methylene chloride, methanol, acetone, isoprophy alcohol, ethyl acetate, MIBK, chloroform. It is the admitted case before this Court that the spent solvents are purified by the process of distillation in reactors and re-used by the APL as solvents. The excess spent solvent is sold at Re. 1/- per litre/Kg. to the dealers, who in turn sell it at ₹ 2/- to ₹ 5/-. The APL allegedly assessed nominal excise duty at Re. 1/- per Kg. 3. During the scrutiny of records, it was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch to hold in favour of respondent seems to be correct. We also note that the learned Commissioner (Appeals) has followed the judgment given by the Tribunal. In our considered opinion, the excisability in the product goods would decide the leviability of excise duty. If product spent solvents are considered as non-excisable, the question of discharge of excise duty on them does not arise. We find that this Bench of the Tribunal in the case of CCE, Hyderabad v. Everest Organics Ltd., [2008 (226) ELT 554 (Tri.-Bang.), came to the following conclusion : We have carefully considered the submissions. We notice that the Revenue has not appealed against the earlier order passed by the Commissioner (A) in the case of M/s. Vorin Lab. The Commissioner (A) has analysed the facts and has noted that the item has lost its utility and has become spent solvent . The product is required to be disposed of as they are hazardous under the Pollution Control norms. Therefore, such removal cannot be held to be marketable goods and they are subjected to excisability. Although, the Revenue had taken the grounds for valuation but the assessee had contested the issue of excisability. Since the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court in Markfed Vanaspati Allied Industries and S.D. Fine Chemicals Ltd., and, therefore, no interference is called for. 7. Two issues arise for consideration. First, whether the department, having accepted the principle in the earlier case, can be permitted to take contra stand in subsequent cases. Secondly, whether the resultant spent solvent in the manufacturing activity of APL is liable to duty in view of Note-11 under Chapter 29 of the Central Excise Tariff Act. We may make it clear that if the answer to the first question is in the negative, there is no need for this Court to go into the second aspect of the matter. 8. The first question is no more res integra. It is well settled. To avoid burdening this judgment with precedents, we need to excerpt only from Indian Oil Corporation Ltd., wherein it was held. ......the learned Additional Solicitor General has fairly conceded that against the order passed by the Tribunal in the case of Hindustan Petroleum Corporation Ltd., v. CCE, Hyderabad, [2000 (124) ELT 323 (T)], no appeal was preferred by the department and the said order has attained finality. Since no appeal was preferred against the order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. It was held as follows. On a careful consideration, we notice from the extracted order of the Commissioner v. Herren Drugs Pharmaceutical Ltd., Order-in-Appeal No. 99/2005, dated 28-6-2005, that the Commissioner has examined the issue in depth and in detail. It has been clearly brought out that the spent solvents had already been utilized in the factory and latter it had undergone further purification for reuse. The excess spent solvents were sold to the outsiders, as it had lost its value and therefore, what was sold was not new goods but only spent solvents which had undergone certain purification process. Such purification process of chemicals has been held to be not a process of manufacture as held in the case of S.D. Fine Chem, this issue has been affirmed by the Supreme Court. The Tribunal ruling in the case of New Sharrock Mills v. Commissioner, [2005 (190) ELT 35 (Tribunal)] held that recovery of caustic soda from spent caustic soda lye by increasing the concentration of spent caustic soda lye does not amount to manufacture inasmuch as caustic soda itself was initial product used for mercering the fabrics. 11. Therefore, the department accepted the assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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