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TMI Blog2021 (8) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... ST INDUSTRIAL GASES LTD.- 2003 (155) E.L.T. 11 (SC). * BALRAMPUR CHINI MILLS LTD. v/S. UNION OF INDIA- 2019 (368) E.L.T. 276 (All.) Since the issue lies in the narrow compass and prima facie covered by the judgment, I am taking up the appeal itself for disposal. 2. Shri Mrugesh Pandya, argued that demand was raised invoking Rule 6(3) i.e. amount equal to 6% of value of the waste packaging material removed by the appellant. He submits that the Show Cause Notice has relied upon the Explanation (1) and (2) of Rule 6(1). He submits that the said explanation applies to the goods which are manufactured even though it is non-excisable. However, as per the undisputed fact the packaging material of the input is not arising out of the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .- For the purposes of this rule, exempted goods or final products as defined in clauses (d) and (h) of rule 2 shall include non-excisable goods cleared for a consideration from the factory. "Explanation 2.- Value of non-excisable goods for the purposes of this rule, shall be the invoice value and where such invoice value is not available, such value shall be determined by using reasonable means consistent with the principles of valuation contained in the Excise Act and the rules made there under." On plain reading of the above explanation, I find that as per explanation (1) only goods which are defined under clause (d) and (h) of Rule 2 could be covered for the purpose of demand under Rule 6(3), for ease of reference clause (d) and (h) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view, the said reasoning cannot be said to be, in any way, erroneous. There is no specific rule levying duty on such drums/barrels/ containers. 4.On this aspect, learned counsel for the assessee pointed out that the Government of India, Ministry of Finance (Department of Revenue), has specifically issued a circular dated 5th September, 1996, inter alia, stating as under :- The matter has been examined, container cannot be treated as inputs. Credit taken under Modvat is with reference to the duty on inputs and not on the containers, notwithstanding the fact that the value of the inputs may include the value of containers and the duty on the inputs may be on "2. ad valorem basis. It is, therefore, clarified that no duty would be payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also dismissed. There shall be no order as to costs." In view of the above judgment, it is clear that the empty packaging material wherein, the input was received, the removal of the same will not attract any duty. The Hon'ble Allahabad High Court in the case of BALRAMPUR CHINI MILLS LTD. v/S. UNION OF INDIA (supra) on the identical issue it was held as under:- "34. In light of the above we are of the considered opinion that in absence of Bagasse being a manufactured final product, the obligation of reversal of Cenvat Credit under Rule (1) of the Cenvat Credit Rules, 2004 is not attracted, and the ratio laid down in the judgment of the Hon'ble Supreme Court in the case of Union of India and others v M/s. DSCL Sugar Ltd and Others (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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