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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 ..... CE dated 31.07.2013 3. E/27831/2013 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 4. E/27832/2013 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 5. E/28313/2013 Lee Pharma Ltd., Commissioner of Central Excise, Customs and Service Tax, Hyderabad-I OIA No. 83/2013 (H-I) CE, 84/2013 (H-I) CE & 85/2013 (H-I) CE dated 22.08.2013 6. E/21809/2014 Lee Pharma Ltd., Commissioner of Central Excise, Customs and Service Tax, Hyderabad-I OIA No. 83/2013 (H-I) CE, 84/2013 (H-I) CE & 85/2013 (H-I) CE dated 22.08.2013 7. E/21810/2014 Lee Pharma Ltd., Commissioner of Central Excise, Customs and Service Tax, Hyderabad-I OIA No. 83/2013 (H-I) CE, 84/2013 (H-I) CE & 85/2013 (H-I) CE dated 22.08.2013 8. E/22860/2014 Lee Pharma Ltd., Commissioner of Central Excise, Customs and Service Tax, Hyderabad-I OIA No. 60/2014-15 (H-I) CE dated 30.06.2014 3. Heard both sides and perused the records. 4. On perusal of records, it transpires that the issue is regarding demand of excise duty pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Rule 173Q of the Central Excise Rules 1944 (the Rules). Be it noted, four such show cause notices were issued to four units of the respondent covering the period from 1995-1996 to 2000-2001. APL submitted their explanation denying any liability. The Commissioner (Appeals), by order dated 29-11-2003, adjudicated the matter and levied duty, penalty and interest under Sections 11A, 11AB and 11AC of the Act and under Rules 9(2) and 209A of the Rules. The Commissioner (Appeals), however, set aside the order in original relying on the decision in M/s. Vorin Laboratories Ltd., Hyderabad vide Order-in-Appeal Nos. 78 & 79/2003 (H-I) C.E. The appeal filed by the Revenue before the CESTAT was, however, allowed and the matter was remanded. After such remand, the Commissioner (Appeals), by order dated 5-4-2007, held that spent solvent is not a product excisable to duty and accordingly rejected the department s contention. In the second round of litigation before the CESTAT, the Revenue was again unsuccessful. 4. The learned CESTAT, in the common order, observed that, earlier in the case of the APL, it was held that spent solvent is not excisable to duty and, accordingly, rejected the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conclusion that the spent solvent in all these cases are not excisable products, the ratio of the decisions cited by the learned Counsel covers the issue in favour of the assessee/respondent, accordingly, respectfully following the same, we find that the issue being no more res integra, the appeals filed by the Revenue are devoid of merits. All the appeals are rejected and the impugned orders are upheld." 5. The Standing Counsel for Customs & Central Excise submits that the spent solvent undergoes a process of purification and treatment in the reactors and, therefore, the marketable spent solvent attracts duty. According the Counsel, as per Note-11 to Chapter-29 of the Central Excise Tariff Act, 1985, when once any product in relation to the products thereunder is subjected to a treatment so as to render it a marketable product, the assessee is liable to pay the duty. 6. The Counsel for APL relies on Indian Oil Corporation Ltd. v. Collector of Central Excise, Baroda [2006 (202) ELT 37 (S.C.) and CCE, Hyderabad v. Novapan Industries Ltd. [2007 (209) ELT 161 (S.C.) and submits that when the issue of excisability of spent solvent is already decided in the earlier cases in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Commissioner of Central Excise reported in [2005 (186) ELT 266 (S.C.)] and Jayaswals Neco Ltd. v. Commissioner of Central Excise, Nagpur reported in [2006 (195) ELT 142 (S.C.)], wherein it has been held that if no appeal is filed against an earlier order of the earlier appeal involving the identical issue was not pressed by the revenue, the revenue is not entitled to press the other appeals involving the same question. In Birla Corporation Ltd., this Court observed as follows : In the instant case the same question arises for consideration and the facts are almost identical. We cannot permit the Revenue to take a different stand in this case. The earlier appeal involving identical issue was not pressed and was, therefore, dismissed. The respondent having taken a conscious decision to accept the principles laid down in Pepsico India Holdings Ltd., [2001 (130) ELT 193], cannot be permitted to take the opposite stand in this case. If we were to permit them to do so, the law will be in a state of confusion and will place the authorities as well as the assesses in a quandary. Birla Corporation Ltd. (supra) is being followed consistently. Since the point involved in the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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