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TMI Blog2022 (6) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Appeal No. 10100 of 2020 - Final Order No. A/10731/2022 - Dated:- 24-6-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) Shri Mitesh Jain, Advocate for the Appellant Shri Vinod Lukose, Superintendent (AR) for the Respondent ORDER The issue involved in the present case is that whether the appellant is required to pay an amount of 6% in terms of 6(3) of the Cenvat Credit Rules, 2004 on empty packaging drums of cenvatable input considering the same as non excisable goods. 2. Shri Mitesh Jain, learned chartered accountant appearing on behalf of the appellant submits that the adjudicating authority and Commissioner (Appeals) confirmed the demand considering the drum as non excisable goods. He further submits that the empty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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) of Rule 2 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In our 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above order, these appeals are 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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