COMMISSIONER OF C. EX. Vs. NAHAR GRANITIES LTD.

JUDGEMENT

(1.) REVENUE is in appeal against the judgment of CESTAT dated 23 -7 -2013 raising the following questions for our consideration:

(2.) IN case of Collector of Central Excise, Patna v. Tata Iron and Steel Co. Ltd. reported in : 2004 (165) E.L.T. 386 (S.C.), the question of dutiability of such product came up before the Supreme Court on the ground that such product was a mere by -product of the manufacturing activity. It was held that no excise duty would be leviable on Zinc Dross. It was observed that merely because the assessee was selling the said by -product, would not mean that the same was a marketable commodity. In short, the Supreme Court held that there was no excise duty liability on the sale of Zinc Dross.

(3.) SHRI Kogje for the department drawing our attention to Rule 3 of the Cenvat Credit Rules, 2004, submitted that the manufacturer or producer of final products or a provider of taxable service would be allowed to take Cenvat credit of the duty of excise specified in the First Schedule to the Excise Tariff Act. In the present case, since the product was not dutiable, no Cenvat credit could be availed. The amount deposited by the manufacturer was not duty.