M/S Asian Peroxides Ltd. v. Commissioner of Central Excise, Guntur

A C [2008] 10 S.C.R.132 - M/S.·ASIAN PEROXIDES LTD. _v._ COMMNR. OF· CENTRAL EXCISE, GUNTUR . (Civil Appeal Nos.5842-5843 of 2004) B JULY 7, 2008 [DR. ARIJIT PASAYAT, P._ SATFIASIVAM AND AFTAB ALAM, JJ.] . _Central Excise Act, 1944:_ C s. _3_ - _Exemption claimed for finished product manufactured by an Export Oriented Unit wholly from raw materials produced in India and cf eared to pomestic Tariff Area_ - _Dispute regarding some items used for man(Jfacture of finished pmduct whether raw materials or consumables_ -'" _Held:_ D _·CE STAT has not considered the materials on record in proper perspective_ - _Matter remitted to it for decision afresh_ - _Notification No.8197-CE dated 1.3.1997 ._ . The appellant, as an Ex"port Oriented Unit; claimed . E exemption- under Notification No.8/97~CE dated 1.3.1997 for Hydrogen Peroxide manufactured and cleared by it .to tire Domestic Tariff Area. The adjudicating authority declined the benefit as it did not accept the case of the assessee that the finished goods were man_ufactured wholly from ra"'!.materia!s produced in India. The Commissioner F (Appea.ls) accepted the claim of the assessee that the · items used in manufactui::ing_ the finished products were not raw materials but o·n1y consumabl.es. However, the CESTAT allowed the appeals filed by the revenue. Ag".' grie..ved, the asse$see filed the instant appeals. ·G' . . . ,..; . c Disposing of the appeals, the Court ·G' HELD: Since the CESTAT has nofconsidered-the materials on record in the proper perspective, the im- 132 ·H · c 0 E ·l F M/S. ASIAN PEROXIDES LTD. _v._ COMMNR. OF _ 1-33 CENTRAL EXCISE, GUNTUR [DR. ARIJIT PASAYAT, J.] pugned judgments are set aside. The matter is. remitted A to the CESTAT in each case to deal with it afresh in accordance with law. The CESTAT while doing so shaJI keep in view the decision of this Court in the case of _V.anasfhali Textiles Industries Ltd.*_ [Para 8] [136-F & G] _*Vanasthali Textiles Industries Ltd. v. Commr. Of_ C. _Ex., Jaipur, Rajasthan_ 2007 (218) ELT. 3(SC); relied on. B _CCE v. Ballarpur Industries Ltd._ (1989) 4 SCC 566 and _Commissioner of Central Excise_ & _Customs, Indore v. Century Denim_ (2001) 129 ELT 657(T) referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.·. · 5842-5843 of 2064 From the final Order. No. 422 and 423/2004 dated _.4/ZI_ 2004 of the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Bangalore, CircOit Bench at Hyderabad in Appeal No. E/181-182/2001 ## WITH C.A. No. 3644-3645 of 2005 Alok Yadav, Rajesh Kumar and M. P. Devnath for the Appellant. I. Venkatanarayana, Navin Prakash, Rahul Kaushik and B.. Krishna Prasad for the Respondent. · · The Ju_~gment of the Court was delivered by· Dr. ARIJIT PAS~YAT, J. 1. In these appeals challenge is to the order by the Customs Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (in short the '1CESTAT'). Before the CESTAT the issue related to the eligibility of the apG pellantfor the benefit of exemption under Notification No.8/97CE dated -1.3.1997 for Hydrogen Peroxide manufactured and cleared by the appellant to the Domestic Tariff Area ( in short the 'OTA'). -The Notification .in question .exempts finished products, , manufactured in a 100%_ Export Oriented Unit (in short_ the 'EOU') , H [2008] 10 S.C.R. > 134 SUPREME COURT REPORTS ~· - . .. c E A wholly from the raw materials produced or manufactured in India - ~ and allowed to be sold in India from so much of the duty of excise leviable thereon under Section 3 of the Central Excise Act, 1944 (in short the 'Act') as is in excess of amount equal to the duty of . excise leviable under Section 3 of the Act on like goods proB . duced or manufactured in India other than in a 100% EOU. 2. The original authority did not accept the stand of the _appellant that the finished goods namely Hydrogen Peroxide . removed .by them from their EOU to the OTA was manufactured wholly from the raw materials produced in India. 3. Aggrieved by the adjudication, assessee appellant filed an appea! before the Commissioner of (Appeals) Excise who accepted the contention of the appellant that the above mentioned items are not raw materials but only consumable and, therefore, assessee cannot be denied the benefit of exemption -D under Notification no.8/97 in respect of several raw materials (11 in number). The revenue preferred appeals before the CESTAT. - By the impugned order in each case CESTAT accepted the s!and of the revenue. It was held that the respondent was not entitled to the benefit of Notificati911No, 8/97. 4. It heJd that in _Commissioner of Central Excise_ & _Customs, Indore v. Century Denim_ (2001) 129 EL T 657 (T) the Tribunal applied the tests enunciated by this Court namely, whether it is an ingredient which goes into the making of the end product in the sense that without_ its presence the end product, as such is - · F -· renderea impossible and took the view that indigo _pure dye,·-lycra ·and other important fixing agents utilized in __ the manufacture of denim fabrics are_ raw materials and not consumables. µ _s. A~cording' to the learned c;ounselfor the appellant the materials in question are not raw materials b~t consumable as G per definition in para 3.13 of the EXIM Policy. According to the definition of 'consumable' it means anYitem which participates 'in or is required for manufacturing process but does noHorm part of the end"product. items which are substantially or totally - consumed during manufacturing _process will be deemed to be · 'H -consqmable:. According to para 3.41 of the policy, raw n:aterial _J_ -