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TMI Blog2024 (12) TMI 1450X X X X Extracts X X X X X X X X Extracts X X X X ..... cleared against international competitive bidding. The impugned order is set aside - appeal allowed. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Vikas Mehta, Consultant for the Appellant Shri R K Agarwal, Superintendent (AR) for the Respondent ORDER The common issue involved in all the appeals is demand of central excise duty on clinker used for captive consumption by availing exemption under Notification No. 67/95-CE dated 16.3.1995 for manufacturing of cement that was cleared against International competitive bidding by claiming exemption under Sr No. 336 of Notification No. 12/2012-CE dated 17.03.2012. 2. Shri Vikas Mehta, Learned Consultant appearing on behalf of the appellant at the outset submits that the very same issue has been decided by this Tribunal by following decisions including the decision in appellant s own case. Shree Digvijay Cement Co Ltd vide final order No. 12222-12227/2024 dated 26.09.2024 CESTAT Ahmedabad Shree Digvijay Cement Co Ltd- 2018 (11) TMI-300-CESTATAhmedabad Thermo Cables Ltd 2013 (292) ELT 412 Kei Industries Ltd 2-17 (357) ELT 1230 Bharat Aluminium Co Ltd 2017 (345) ELT 685 Ultratech Cements Ltd 2016 (343) ELT 164 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties of Excise(Goods of Special Importance Act, 1957 (58 of 1957). (herein after referred to as the said Special Importance Act), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts. ( i) capital goods as defined in rule 3 of the CENVAT Credit Rules, 2002, manufactured in a factory and used within the factory of production, (ii) goods specified in column (1) of the Table hereto annexed (hereinafter referred to as 'inputs ) manufactured in a factory and used within the factory of production in or in relation to manufacture of final products specified in column (2) of the said Table; from the whole of the duties of excise leviable thereon which is specified in the Schedules to the Central Excise Tariff Act, 1985 (5 of 1986) or additional duty of excise leviable thereon, which is specified in the Schedule to the said Special Importance Act: Provided that nothing contained in this notification shall apply to inputs used in or in relation to the manufacture of final products which are exempt from the whole of the duty of excise or additional duty of excise leviable thereon or are chargeable to nil rate of duty, other than thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d counsel. It is not in dispute that the final products were cleared without payment of duty under Notification No.6/2006 CE which, at Sl No 91 thereof, prescribed nil rate of duty for all goods (falling under any chapter) supplied against international competitive bidding. This exemption was subject to the condition that the goods were exempted from basic customs duty and additional duty of customs when imported into India It is not in dispute that the final products cleared by the assessee without payment of duty during the relevant period satisfied this condition Against this backdrop, one has to read the provisions of Rule 6(6)(vii) of the CENVAT Credit Rules 2004. This sub-rule reads as follows:- (6) The provisions of sub-rules (1), (2), (3) and (4) shall not be applicable in case the excisable goods removed without payment of duty are either (i)---------------------------------- (ii)--------------------------------- (iii)-------------------------------- (iv)-------------------------------- (v)-------------------------------- (vi)-------------------------------- (vii) all goods which are exempt from the duties of customs leviable under the First Schedule to the Customs Tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ark, or (iv) to a unit in a Software Technology Park, or (v) under notification No. 108/95-Central Excise, dated the 28th August, 1995, or (vi) by a manufacturer of dutiable and exempted final products, after discharging the obligation prescribed in Rule 6 of the CENVAT Credit Rules, 2001. 6. From the above proviso to Notification No.67/95-CE ibid, it appears that the bar created therein is not applicable to the inputs used in or in relation to the manufacture of exempted final products cleared by a manufacturer of such exempted final products as well as dutiable final products. In other words, where the manufacturer manufactures both dutiable and exempted final products and uses the inputs in question in the manufacture of the exempted final products, he is entitled to the benefit of exemption from payment of duty on such inputs in terms of the opening paragraph of the Notification. This right is not hit by the opening portion of the proviso to the Notification as the manufacturer is squarely covered by the exception carved out of the proviso vide clause (vi) under the proviso. The Department, it appears, would like to drive the assessee out of the purview of this exception on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l products cleared by the assessee without payment of duty during the relevant period satisfied this condition. Against this backdrop, one has to read the provisions of Rule 6(6) (vii) of the CENVAT Credit Rules, 2004. This sub-rule reads as follows:- (6) The provisions of sub-rules (1). (2), (3) and (4) shall not be applicable in case the excisable goods removed without payment of duty are either (i)---------------------------------- (ii)--------------------------------- (iii)-------------------------------- (iv)-------------------------------- (v)-------------------------------- (vi)-------------------------------- (vi) all goods which are exempt from the duties of customs leviable under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and the additional duty leviable under Section 3 of the said Customs Tariff Act when imported into India and supplied against International Competitive Bidding in terms of Notification No 6/2002-Central Excise, dated the 1st March, 2002 or Notification No. 6/2006 Central Excise, dated the 1st March, 2006, as the case may be. From the above provision, it is clear that the appellant did not have any liability under sub-rule (2) to main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacture of exempted final products cleared by a manufacturer of such exempted final products as well as duliable final products in other words, where the manufacturer manufactures both dutiable and exempted final products and uses the inputs in question in the manufacture of the exempted final products, he is entitled to the benefit of exemption from payment of duty on such inputs in terms of the opening paragraph of the Notification. This right is not hit by the opening portion of the provise to the Notification as the manufacturer is aquarely covered by the exception carved out of the proviso vide clause (vi) under the proviso. The Department, it appears, would like to drive the assessee out of the purview of this exception on the ground that the latter had not discharged the obligation prescribed in Rule 6 of the CENVAT Credit Rules, 2004. We have already held that the assessee did not have any liability under sub-rules (1) to (4) of Rule 6 inasmuch as these sub-rules were not applicable, by virtue of sub-rule (6), to the assessee who were clearing their exempted final products against international competitive bidding in terms of Notification No. 6/2006-C.E. ibid. In other wor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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