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TMI Blog2008 (7) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... (J) and K. K. Agarwal, Member (T) Shri M. H. Patil, Advocate, for the Appellant. Shri K. Lal, SDR, for the Respondent. [Order per: M.V. Ravindran, Member (J)]. - These two appeals are filed against Order-in-Appeal No. BPS(IOO)158/2003 dated 27-3-2003 and Order-in-Original No. 26/CEX/2003, dated 9-1-2001. 2. The relevant facts, in brief, are that the appellants are manufacturer of Sugar, Molasses, Alcohol, Rectified Spirit and Denatured Spirit. Duty paid molasses was used in the appellants' own factory for manufacture of rectified spirit, which is used for manufacture of denatured spirit. The rectified spirit so manufactured was also used captively for manufacturing country liquor, which is exempted from Central Excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE, Aurangabad v. Tilaknagar Inds. Ltd. - 2008 (225) E.LT. 51 (Bom.). It is his submission that very same issue as regards the use of rectified spirit and molasses for the country liquor was decided by the Tribunal in the case of NCS Distilleries/Estates Pvt. Ltd. v. CCE, Visakhapatnam as reported at 2007 (207) E.L.T. 400 (Tri.-Bang.). 4. The learned SDR, on the other hand, submits that Rule 57CC will be applicable during the relevant period as rectified spirit was manufactured out of duty paid molasses. It is his submission that it is an admitted fact that there was no sale of rectified spirit from the factory premises. It is his contention that the appellant could not have taken the credit on duty paid molasses, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the amount of duty on molasses despite reversing 8% of the sale price of rectified spirit on the ground that there was no sale of rectified spirit. We find that though there is no sale of rectified spirit from the factory premises of the appellant, the clearance of such goods for captive consumption would amount to deemed sales, as has been held by the Hon'ble Supreme Court, in the case of CCE, Nagpur v. Ballarpur Industries (supra). We may reproduce the ratio of the said judgment:- "14. In our view, Rule 57CC, therefore, required payment of a presumptive amount of eight per cent of the price of the exempted goods, net of sales tax and other taxes. This rule was self contained provision indicating the basis on which price had to be det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rer has taken credit of the specified duty on "common inputs" which needs to be reversed at eight per cent (i.e. the manufacturer needs to debit an amount equal to eight per cent of the price of the exempted final product charged for the sale of such goods. This amount is a presumptive sum calculated at eight per cent of the price charged. The rate of eight per cent is the measure to calculate the presumptive sum. Further, reading Rule 57CC(1) with Rule 57CO(8) one finds that entire rule is based on "deemed price" and "recovery of presumptive amount" and, therefore, in our view, the words "price charged at the time of sale" must be read as "eight per cent of the value of the exempted goods". Our interpretation stands supported by the Instru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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