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TMI Blog2019 (7) TMI 1776X X X X Extracts X X X X X X X X Extracts X X X X ..... t demand of duty due to specific exemption available to the assessee. The process further clarifies that since no other separate activity or process is being employed by the appellant to extract the product, which has been cleared by them, the extraction of the impugned silver cannot at all be called as the activity of manufacture and therefore, has rightly been impressed upon to be out of the ambit of Section 57 CC of Central Excise Rules, 1944 - The argument of the Department that the unavoidable remnant is a Pyro-silver but the product cleared by the appellant is silver, is not acceptable as it is not coming out of the show cause notice. It is apparent that whatever emerges from the oxides of zinc and lead during the process of smelting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in these appeals is about the demand under Rule 57 CC of Central Excise Rules, 1944 in respect of silver emerging as a by-product during the course of manufacture of zinc and lead. 3. The relevant factual matrix for the impugned adjudication is that the appellants are engaged in manufacture of zinc, lead etc. at the Chanderia Lead Zinc Smelter Plant in Distt. Chattisgarh. They had availed the Cenvat Credit under Rule 57A on the common input that is the "concentrates" used in relation to the said manufacture. The Department observed that since the appellants are not maintaining a separate inventory and accounts and are using the said input in relation to the manufacture of silver being produced during the process of extraction of zinc and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attributable for obtaining of the silver, in as much as, it is a by-product. This facts also takes the impugned product out of the ambit of provision as relied upon by the Department. She has brought to our notice that earlier also this Tribunal vide Final Order No. 1783-1789 dated 19.10.2006 has decided the same issue in favour of the assessee appellants. She has also brought to our notice another order of this Tribunal in appellant's own case bearing No.50401-50403 dated 1st February, 2018 being decided in favour of the assessee- appellant. Accordingly, she has prayed for the impugned order to be set aside and all the appeals to be allowed. 6. While rebutting these arguments, ld.D.R. has submitted that the orders of this Tribunal as hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Sinter Plant where Sulphur is removed from the concentrates to obtain zinc oxide and lead oxide and agglomerates the product into porous, high strength lumps, called sinter. The hot sinter is charged into the Imperial Smelting Furnace, wherein various reactions take place. The oxides are reduced to lead bullion and zinc bullion. The zinc bullion (also known as Furnace Zinc), being light, stays at the top of the Furnace and is obtained by the process of vaporization and condensation and is taken to the Zinc Refinery[the said fact is recorded in the OIO dated 29.10.1999]. 7.3 The molten lead bullion (with impurities, viz. copper, silver, antimony etc.), being heavy, remains at the bottom of the Imperial Smelting Furnace and is taken to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is by the appellant. There is no evidence to the contrary. Accordingly, we are of the opinion that the facts of the present case are absolutely identical to the facts of appeal No. E/218-224/2001 as were decided by Final Order No.1783-1789 on 19.10.2006. This Tribunal while adjudicating those appeals had relied upon the earlier decision of the Tribunal in the case of CCE, Udaipur vs. M/s. Hindustan Zinc Pvt. Ltd. reported as 2004 (178) ELT 255 (Tri.-Del.). "4. We have considered the submissions of both the sides. It has not been disputed by the Revenue that LDO, in respect of which Modvat Credit has been availed of by the appellants, is used in the Smelting operations undertaken by them for manufacture of their final products, i.e., zinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se or is chargeable to nil rate of duty. The mere fact of using Sulphur Di-oxide for making Sulphuric Acid will not tantamount to using the modvatable inputs in the manufacture of exempted products i.e. Sulphuric Acid. This was the view expressed by the Tribunal in the case of Hi-tech Carbon (supra) where the appellants were availing Modvat Credit of the duty in respect of carbon black feed stock for the manufacture of carbon black; that during the process of manufacture, off gases were generated. These off gases were used by the appellants to generate steam. The Tribunal, after relying upon the decision in the case of Aarti Drugs Ltd. (supra) has held that provisions of Rule 57CC of the Central Excise Rules, 1944, shall not be applicable t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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