Hindalco Industries Limited Vs C.C.E-Bharuch (CESTAT Ahmedabad)
CESTAT Ahmedabad held that that appellants are eligible for benefit of Notification No. 67/95 and the duty demand on the quantity of oxygen so used in the manufacture of sulphuric acid, is liable to be set aside.
Facts- The appellant are engaged in manufacture of Copper Cathodes, Continuous Cast Copper Rods, Sulphuric Acid and Phosphoric Acid etc falling under CETH 74228 of Central Excise Tariff Act, 1985. The appellant has an oxygen gas producing plant within their factory premises and oxygen produced in the oxygen plant is further used in manufacture of Copper Cathodes and Sulphuric Acid. The manufacturing process involved is that the copper concentrate is mixed with the silica and charged in smelting furnace with oxygen. In the process the Sulphur present in the concentrate reacts with the oxygen to form Sulphur Dioxide. The Sulphur Dioxide is separated and again reacted with oxygen separately with the catalyst to form Sulphur Trioxide. The Sulphur Trioxide thus obtained is further absorbed with Sulphur Acid and Water to get concentrate Sulphuric Acid. The Sulphuric Acid produced is cleared by the appellant as final product at nil rate of duty under Notification No. 12/2012 dated 17.03.2012 for further manufacture of fertilizer.
It has been contention of the department that since the final product namely Sulphuric Acid is exempted from Central Excise Duty, the appellant should have discharged the duty on their intermediate product namely oxygen gas which is captively consumed by them.
The issue involved here is whether the oxygen captively consumed in the manufacture of dutiable Copper Cathodes as well as exempted Sulphuric Acid can be denied the benefit of exemption Notification No. 67/95- CE dated 16.03.1995.
Conclusion- Hon’ble Supreme Court in the case of Union of India Vs. Hindustan Zinc Ltd held that in the present case, the appellant manufactured oxygen used in the manufacture of excisable product and they had no obligation to maintain separate accounts for oxygen used in the manufacture of Sulphuric Acid. It is established that appellant did not use oxygen produced in the manufacture of Sulphuric Acid. Accordingly, conditions of Notification No. 67/95 are complied. We hold that appellants are eligible for benefit of Notification No. 67/95 and the duty demand on the quantity of oxygen so used in the manufacture of sulphuric acid, is liable to be set aside.
Since the facts of the matter at hand are similar to the one decided by this Tribunal on the basis of Apex Court decision in the case of Hindustan Zinc, we follow the same and hold that impugned Orders-In-Original are without any merit and we set aside the same.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
The brief facts of the case are that the appellant are engaged in manufacture of Copper Cathodes , Continuous Cast Copper Rods, Sulphuric Acid and Phosphoric Acid etc falling under CETH 74228 of Central Excise Tariff Act, 1985. The appellant has an oxygen gas producing plant within their factory premises and oxygen produced in the oxygen plant is further used in manufacture of Copper Cathodes and Sulphuric Acid. The manufacturing process involved is that the copper concentrate is mixed with the silica and charged in smelting furnace with oxygen . In the process the Sulphur present in the concentrate reacts with the oxygen to form Sulphur Dioxide. The Sulphur Dioxide is separated and again reacted with oxygen separately with the catalyst to form Sulphur Trioxide. The Sulphur Trioxide thus obtained is further absorbed with Sulphur Acid and Water to get concentrate Sulphuric Acid. The Sulphuric Acid produced is cleared by the appellant as final product at nil rate of duty under Notification No. 12/2012 dated 17.03.2012 for further manufacture of fertilizer.
2. It has been contention of the department that since the final product namely Sulphuric Acid is exempted from Central Excise Duty, the appellant should have discharged the duty on their intermediate product namely oxygen gas which is captively consumed by them. The department contended that exemption Notification No. 67/95- CE dated 16.03.1995 is not available to the oxygen gas since the same is used in the manufacture of exempted Sulphuric Acid.
3. Thus, the show cause notice was issued for the period December, 2008 to November,2013 demanding Central Excise Duty of Rs. 25,70,98,060/-. Further periodical show cause notices were also issued which got adjudicated. The details of the show cause notices along with appeals and Orders- In- originals is given here below in the table:-
