M/S Shri Sant Tukaram S.S.K. Ltd vs Cce Pune Iii

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II

APPEAL NO. E/89805/13 and E/85217/14  Mum

(Arising out of Orders-in-Appeal No. PUN-EXCUS-003-APP-278-13-14 dated 09.10.2013 and PUN-EXCUS-003-APP-294-13-14 dated 21.10.2013 passed by the Commissioner of Central Excise (Appeals), Pune.)

For approval and signature:

Shri. M.V. Ravindran, Member (Judicial)

1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

M/s Shri Sant Tukaram S.S.K. Ltd. : Appellant

Versus

CCE Pune III

Respondent

Appearance

Shri A.S. Sakpal, Advocate for Appellants Shri Ashutosh Nath, Asst. Commissioner (A.R.) for Respondents

CORAM:

Shri. M.V. Ravindran, Member (Judicial)

Date of Hearing : 30.03.2015 Date of Decision : 30.03.2015

ORDER NO.

Per : M.V. Ravindran These two appeals are directed against Orders-in-Appeal No. PUN-EXCUS-003-APP-278-13-14 dated 09.10.2013 and PUN-EXCUS-003-APP-294-13-14 dated 21.10.2013.

2. Relevant facts that arise for consideration are that the appellant here-in is manufacturer of sugar and during the manufacturing of sugar, Baggasse, Press mud and Fly Ash get generated which are sold by the appellant. The appellant clears the Baggasse, Press mud and Fly Ash without payment of duty claiming them to be non-excisable. It is the case of revenue that having not maintained separate accounts in respect of common goods and input services is required to pay an amount of 5%/10% of the value of the exempted non-excisable goods cleared. The appellant paid such amount and subsequently claimed refund on the ground that they paid amount under protest and also on the ground that an identical issue in respect of Shri Vithal SSK Ltd and Majalgaon SSK were in their favour. Revenue authorities issued show-cause notices to the appellant as to maintainability of the refund claim. Adjudicating authority after following the due process of law, rejected the refund claim. Aggrieved by such an order, the appellant preferred appeals before first appellate authority who also agreed with the views of the adjudicating authority and rejected the appeal.

3. Learned Counsel would submit that the appellants own case this Bench has vide final order No.A/396-398/14/SMB/C-IV dated 06.02.2014 has held that the press-mud which generated during the manufacturing of sugar is not an excisable commodity and the appeals were allowed with consequential relief. It is his submission that the Honble High Court of Allahabad in the case of Balrampur Chini Mills  2014 (300) ELT 372 has held that Baggasse and Press Mud are waste product and are not excisable.

4. Learned A.R. on the other hand, would submit that the decision of Balrampur Chini Mills (supra) is pending before the Honble Apex Court and the SLP filed by the Revenue has been admitted. He would submit that the issue in this case is covered by the decision of the Larger Bench of this Tribunal in the case of Hindalco Industries Ltd. vs. CCE  2014 (308) ELT 472 (Tri.LB) which has been upheld by the Honble High Court of Bombay as reported in 2015 (315) ELT 10 (Bom.) for the proposition that waste and scrap arising as a by-product would be excisable as per the Central Excise Tariff.

5. I have considered the submissions made by both sides and perused the records.

6. On perusal of the records, it transpires that the issue is regarding whether the appellant is liable to pay amount 5%/10% of the value of Baggasse, Press mud and Fly Ash cleared by them as waste. In my considered view, the final order of this Bench in appellants own case vide order dated 06.02.2014 (supra) has held that press mud is waste and non-excisable. This view of the Tribunal is binding on me and accordingly if the appellant has paid an amount under protest entertaining a view that he is not liable to pay the same it needs to be refunded to him. I also find strong force in the contentions raised by the appellant that decision of Honble High Court of Allahabad in the case of Balampur Chini Mills (supra) squarely covers the issuee in their favour. The waste cannot be considered as a bye-product and hence it cannot be said that common inputs on input services are utilized for seeking reversal of 5% or 10% of the value of waste products. Accordingly, in my view, the impugned order is liable to be set aside and I do so.

7. Impugned order is set aside and the appeals are allowed with consequential relief.

(Dictated in Court)

(M.V. Ravindran) Member (Judicial)

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