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TMI Blog2023 (3) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... t these products are not intentionally manufactured but only arise during the process of refining of crude vegetable oil and therefore should be considered as waste and they are entitled to the benefit of exemption N/N. 89/1995-CE. The issue is no longer res-integra accordingly, the impugned order is set aside - Appeal allowed. - Excise Appeal No.11584 of 2013 - Final Order No. A/10237/2023 - Dated:- 7-2-2023 - Hon'ble Member (Judicial), Mr. Ramesh Nair And Hon'ble Member (Technical), Mr. Raju For the Appellant : Shri S J Vyas, Advocate For the Respondent : Shri Prakash Kumar Singh, Superintendent (AR) ORDER RAMESH NAIR The issue involved in the present case is that whether the appellant is liable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aste, they are covered by exemption notification 89/1995-CE. If, on the other hand, these are considered as by-products, as asserted by the department, they are not entitled to the benefit of this notification. The matter has been decided by the Larger Bench of the Tribunal in Ricela Health Foods (supra) and it has been held that these products are not intentionally manufactured but only arise during the process of refining of crude vegetable oil and therefore should be considered as waste and they are entitled to the benefit of exemption notification 89/1995-CE. Respectfully following the decision of the Larger Bench, we hold that the impugned order is unsustainable and liable to be set aside and we do so. 9. The appeal is allowed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x court by dismissing the civil appeal Nos. 219-220 of 2010 filed by the Revenue reported in 2011 (274) E.L.T. A16 (S.C.). This was wrongly referred to as dismissal of SLP. The Tribunal noted the dismissal of civil appeal by the Apex court incorrectly as dismissal of SLP; (d) the order of the Hon'ble Supreme Court affirming the decision of the Tribunal in A.G. Fats (supra) by dismissing the civil appeal will not form a binding precedent in view of similar dismissal of civil appeal against a contrary decision in Priyanka Refineries (supra). Thus, there exist two decisions of co-equal Benches on the same Issue. The Larger Bench of the Tribunal, now seized of the matter, should take a view which correctly reflects the legal position. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question. It is the case of the appellant that if it can be established that these goods are not manufactured goods then the question of levy itself will not arise. It is contended that the product, in question, are unwanted/inevitable waste. The value realized by the appellants on such unintended waste by sale, itself is not a criteria to decide the excisability. The Hon'ble Supreme Court in CCE vs. Indian Aluminium Company 2006 (203) E.L.T. 3 (S.C.) held zinc dross and flux skimming are not eligible to central excise duty. Relying on the earlier decisions in Union of India vs. Indian Aluminium Company Ltd. 1995 (77) E.L.T. 268 (S.C.) and CCE, Patna vs. Tata Iron Steel Company Ltd.. - 2004 (165) E.L.T. 386 (S.C.), the Apex court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acid distillate are emerging due to removal/refining process of crude rice bran oil. As already noted the process is to obtain refined rice bran oil by removing these unwanted products alongwith spent earth, which when present makes the oil as crude refined oil. 11. The thrust of the arguments by the Revenue is that when a product is capable of being sold for a significant consideration the same cannot be considered as waste. We are unable to accept such summary presumption. Admittedly, in chemical and metallurgical industry when the raw materials are processed with an intended purpose of manufacturing certain final products by a chemical reaction, refining, melting etc. multiple products will result. These products either emerged in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dental products are nothing but waste arising during course of refining of rice bran oil and applying the ratio of Apex court, as discussed above, these cannot be considered as manufactured excisable goods. Noting that the reference is to decide whether these are to be treated as waste for the purpose of exemption Notification 89/95-CE we note though the excisability of the product itself is seriously in dispute as per the opinion expressed by us, as above, these cannot be considered as anything other than waste and as such will be covered by the exemption Notification No. 89/95-CE. This has been pleaded as a alternate argument by the appellant/assessee also. 12. As such in view of the above discussion and finding, we note that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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