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TMI Blog2024 (9) TMI 1593X X X X Extracts X X X X X X X X Extracts X X X X ..... The excess spent solvents were sold to the outsiders, as it had lost its value and therefore, what was sold was not new goods but only spent solvents which had undergone certain purification process. Such purification process of chemicals has been held to be not a process of manufacture.' The impugned order-in-appeal is not sustainable in law and therefore set aside - appeal allowed. - HON BLE MR. RAMESH NAIR , MEMBER (JUDICIAL) And HON BLE MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri AB Nawal, Cost Accountant for the Appellant Shri Rajesh R. Kurup, Superintendent (AR), for the Respondent ORDER C. L. MAHAR : The brief facts of the matter are that the appellant is 100% EOU engaged in the manufacturing of bulk drugs falling under Chapter heading No. 29 of Central Excise Tariff Act, 1985. For manufacturing of bulk drugs the appellant procured imported raw materials as well as indigenous raw material without payment of Customs/ Central Excise duty for manufacturing the finished goods for exporting the same or for sale in Domestic Tariff Area as per existing Export Import policy. It is submitted that during the course of manufacturing final products, various inputs are used and all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same cannot be further used in the manufacturing process by the appellant. It has further been argued that such spent solvent is neither excisable nor is dutiable as per Central Excise Act. The learned Cost Accountant relied upon various case laws in this regard which are as follows:- (a) Commissioner of C. Ex., Hyderabad vs. Aurobindo Pharma Limited - 2010 (249) E.L. . 415 (Tri. - Bang.) (b) Commissioner of C. Ex., Hyderabad-I vs. Aurobindo Pharma Limited - 2010 (259) E.L.T. 673 ( . .) (c) Sandoz Pvt. Limited vs. Commissioner of Central Excise, Raigad - 2016 (343) E.L.T. 1170 (Tri. - Mumbai) 5. We have also heard Shri Rajesh R. Kurup, learned Superintendent (AR) who has reiterated the findings as given in the order-in-appeal. 6. After considering the rival submissions, we feel that the matter is no longer res-integra as the issue has already been decided by Hon ble Andhra Pradesh High Court in the case of Commissioner of C. Ex., Hyderabad-I vs. Aurobindo Pharma Limited - 2010 (259) E.L.T. 673 ( . .) which has also been upheld by the Hon ble Supreme Court reported as Commissioner vs. Aurobindo Pharma Limited 2011 (269) ELT A147 (SC). The relevant extract of the Hon ble Andhra Prad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as become final, the department is not entitled to raise the same point in other cases in view of the decisions of this Court in Union of India Others v. Kaumudini Narayan Dalal Another reported in (2001) 10 S.C.C. 231; Collector of Central Excise, Pune v. Tata Engineering Locomotives Co. Ltd., reported in 2003 (158) E.L.T. 130 (S.C.), Birla Corporation Limited v. Commissioner of Central Excise reported in 2005 (186) E.L.T. 266 (S.C.) and Jayaswals Neco Ltd. v. Commissioner of Central Excise, Nagpur reported in 2006 (195) E.L.T. 142 (S.C.), wherein it has been held that if no appeal is filed against an earlier order of the earlier appeal involving the identical issue was not pressed by the revenue, the revenue is not entitled to press the other appeals involving the same question. In Birla Corporation Ltd., this Court observed as follows : In the instant case the same question arises for consideration and the facts are almost identical. We cannot permit the Revenue to take a different stand in this case. The earlier appeal involving identical issue was not pressed and was, therefore, dismissed. The respondent having taken a conscious decision to accept the principles laid down in P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture. The question now - we are afraid - cannot be reagitated on the strength of the ratio in Birla Corporation Ltd., which received approval in Indian Oil Corporation Ltd. and Novapan Industries Ltd. 12. These appeals fail and are, accordingly, dismissed. No costs. This Tribunal in the case of Sandoz Pvt. Limited vs. Commissioner of Central Excise, Raigad - 2016 (343) E.L.T. 1170 (Tri. - Mumbai) has also held as follows:- 7. Undisputed facts are that the appellant had during the course of manufacturing of bulk drugs generated waste arising in fermentation process is treated, dried and compost and removed as bio-manure by filling them in old bags without payment of duty. It is also undisputed that the bio-manure did bring some consideration to the appellant. We find that the demand of duty is on the ground that the appellant had cleared waste solvent in the guise of bio-manure. This allegation in the show cause notice is not properly addressed by the adjudicating authority as well as the first appellate authority. If the waste solvent is cleared from the factory premises of the appellant as bio-manure, undoubtedly the same should be in the form of liquid. The Range Supdt. of the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal. The Hon ble Supreme Court listed the twin tests and which have to be satisfied before the goods can be said to be excisable to tax or Central Excise duty. It is in these circumstances that the attempt of the Tribunal and which is supported before us by Mr. Sethna cannot be upheld. Each of these observations and from para 6.5 onwards run counter to the Judgments of the Hon ble Supreme Court. 7.2 This entire issue can also be decided by considering the allegations made in the show cause notices. The show cause notices allege that the appellant had cleared the waste solvent and it is undisputed that these waste solvent cannot be reused by the appellant in their factory. In our considered view the taxability/dutiability of the waste solvent has been decided in favour of the assessee Aurobindo Pharma (supra). Hon ble High Court of Andhra Pradesh has in a speaking order (as cited hereinabove) categorically recorded that waste solvent that arises during the course of manufacturing of bulk drugs are not dutiable. 7.3 In view of the foregoing, we hold that the impugned orders wherein the demand of duty is confirmed are unsustainable and liable to be set aside and we do so. Since th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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