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TMI Blog2005 (4) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... ic Di-oxide, the appellants converts it into Sulphric acid. Such acid is cleared on payment of duty and some times without depending on who the end-user is (End-use exemption for Sulphuric acid exists). When inputs on which credit is availed are used both in dutiable and non-dutiable products Rule 57CC/R6 comes into play which stipulates that the assessee in such a situation is required to reverse 8% of the price of exempted goods (Sulphuric acid in the case) before he clears such exempted goods. It is the Departments' contention that the appellants have not done so. 2. In all four appeals are taken up arising out of Commissioner (Appeals) order No. 5/2003 dated 8-1-2003, 6/2003 dated 8-1-2003, 160/2002, dated 19-3-2002 and 215/03 dated 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which were due prior to their introduction; that for the period prior to 19-8-2002 the Circular of 2001 governed the field and hence a reversal of the credit attributable to the exempted final products was sufficient compliance with the Rule [2003 (158) E.L.T. 168]; [2003 (153) E.L.T. A89 (S.C.)], [2002 (149) E.L.T. 490] relied upon. 4. The ld. DR Shri Hitesh Shah argued that the appellants availed of credit of duty paid on zinc concentrate which had been used in the production of Sulphuric acid on which no duty was paid thus attracting provisions of Rule 57CC/R6; that the plea that CVD was paid only on zinc and not on the other ingredients of the zinc such as sulphur at the time of import is incorrect; that for the purpose of Rule 57CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case supra; that the Supreme Court in the case of Kalyani Packaging v. UOI [2004 (168) E.L.T. 145] held that circulars cannot grant relief from recovery of duties etc. if demands have been confirmed and are under litigation and that the Supreme Court in the case of CCE v. Eswaran and Sons [2005 (179) E.L.T. 272 held that if a show cause notice is issued prior to a circular, the latter circular cannot stand in the way of enforcement of the demand. 5. We have considered the rival submissions carefully. 6. Rule 57CC comes into play when an input on which duty is paid (CVD in the present case) is used in the production of both dutiable and exempted final products. When separate accounts are not maintained to indicate how much of the inputs is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that Rule 57CC is not applicable in cases where the by-product attracting Nil rate of duty emerges in the process of manufacture of final product which is dutiable. The same view is held in the case of Keshorai Patan Sahkari Sugar Mills Ltd. [2002 (144) E.L.T. 447 (Tri.) = 2002 (50) RLT 657]. The Tribunal held that Rule 57CC is not attracted on clearance of press mud without payment of duty as press mud arising during the manufacturing process is a residue and not a final product. In Gas Authority of India Ltd. [2001 (136) E.L.T. 1019] relying on an earlier decision of the Tribunal it was held that dutiability of the by-product was not the issue but the issue was whether the product was a by-product. The Tribunal in the case of GAIL su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly exploit sulphur dioxide, that emanates during the process of manufacture of zinc by converting it into sulphuric acid for commercial purposes. It is more of a subsidiary product then a by-product. The Supreme Court in the case of Commissioner of Sales Tax Bombay v. Bharat Petroleum Corporation Ltd. [1995 (77) E.L.T. 790] held that where a subsidiary product is turned out regularly and continuously in the course of a manufacturing business and is also sold regularly from time to time, an intention can be attributed to the manufacturer to manufacture and sell not merely the main item manufactured but also subsidiary products. It is difficult to accept the contention that Sulphuric Acid is a by-product. The rigours of case law cited by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated. One could take a view that since at the time when the sums were demanded there were no provisions to recover them, the matter should be remanded to start recovery proceedings under Rule 6 read with Rule 12 of Cenvat Credit Rules, 2002. Such a views at best is pedantic and does not serve the ends of justice. We are of the opinion that the ends of justice are better served if the impugned orders of the Commissioner are upheld, in view of the fact that the liability exists and the machinery provisions are brought into force w.e.f. 1-3-2002. Nobody would be the gainer if another round of fruitless proceedings are started to confirm the same amounts as indicated in the impugned orders. The matter would have been entirely different had the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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