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TMI Blog2020 (4) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... lied upon its own order dated 09.04.2015 passed in the case of the very same assessee but Revenue has not thought fit to challenge the order passed by the Tribunal dated 09.04.2015 referred to in Paragraph No.4 of the impugned order. Well if that be the position, then we see no good reason to look into the matter any further - the two questions of law, as proposed by the Revenue cannot be termed as substantial questions of law - appeal dismissed - decided against appellant. - R/TAX APPEAL NO. 58 of 2020 - - - Dated:- 27-2-2020 - HONOURABLE MR.JUSTICE J.B.PARDIWALA AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA Mr Ankit Shah for the Appellant Rahul L Gajera for the Opponent ORAL ORDER PER : HONOURABLE MR.JUSTICE J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sides and perused the records. We find that very same issue in the appellant's own case has been decided by this Tribunal vide order dated 09.04.2015 as cited above wherein the coordinate Bench of this Tribunal passed the following order: The relevant facts of the case, in brief, are that the appellants are engaged in the manufacture of Carbon Black, classifiable under Chapter Heading 2803 00 10 of the Schedule to the Central Excise Tariff Act, 1985. The main input is Carbon Black Feed Stock (CBFS). During the process of manufacture of Carbon Black, Lean Gas is emerged as by-product, which is used for generation of electricity. The electricity was partly used in the plant and partly sold. 2. According to the Revenue, elec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product in the process of manufacture of Carbon Black. The definition of byproduct as referred to by the learned Senior Departmental Representative supported the view that the off-gases are nothing but by-product as the same has been generated incidentally in the production of something else that is carbon black. Rule 57D(1) of the Central Excise Rules at the relevant time provided that credit of specified duty shall not be denied or varied on the ground that part of inputs is contained on any waste, refuse, or by-product arising during the manufacture of final product, or that the inputs have become waste in or in relation to the manufacture of the final product, whether or not such waste, refuse or by-product is exempted from whole of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able under Rule 57D(1) to a by-product. The marketability or otherwise of by-product is not really an issue. The Tribunal again in the case of Gas Authority of India Ltd. (supra) observed that when a manufacture sets out to create a product out of certain raw materials, he not only creates the product, but also creates other goods which are refuse, waste or by-product. The classification of goods into final products, by-products, waste and refuse is mainly on commercial consideration and the Plan or manufacture . The Tribunal in Gas Authority of India Ltd. case after referring to definition of by-product as given in Chamber's Dictionary and Webster's Compressed Dictionary has held that the lean has obtained by processing natural gas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of C.Ex Customs, Vadodara-I Vs. Serling-Gelatin [2011 (270) ELT 200 (Guj.)], wherein the same questions of law, as proposed in the present appeal were considered. While answering the questions of law against the Revenue, this Court observed as under:- 10. In the facts of the present case, it is not as if by using a smaller quantity of input Hydrochloric Acid, the respondent could have averted the emergence of Mother Liquor. In other words, in the technology utilized by the respondent for the manufacture of Gelatin, the emergence of Mother Liquor was inevitable. Hence, while it is no doubt correct to say that Hydrochloric Acid has been used in or in relation to manufacture of Mother Liquor, the identical quantity of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. On behalf of the appellant it has been submitted that common input Hydrochloric Acid was used in the manufacture of both Gelatin as well as Di-Calcium Phosphate hence, in the light of the provisions of rule 6(2) of the Cenvat Credit Rules, 2002, the respondent was required to maintain separate accounts for receipt, consumption and inventory of input meant for use in the manufacture of dutiable final products and the quantity of input meant for use in the manufacture of exempted products and take cenvat credit only on that quantify of input which was intended for use in the manufacture of dutiable goods. In the present case, the assessee has taken cenvat credit only on that quantity of input, which was intended for use in the manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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