M/S.·ASIAN PEROXIDES LTD v. COMMNR. OF· CENTRAL EXCISE, GUNTUR

*Vanasthali Textiles Industries Ltd. v. Commr. Of C. Ex., B Jaipur, Rajasthan 2007 (218) ELT. 3(SC); relied on. CCE v. Ballarpur Industries Ltd. (1989) 4 SCC 566 and Commissioner of Central Excise & Customs, Indore v. Cen- tury Denim (2001) 129 ELT 657(T) referred to. · c 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 C.A. No. 3644-3645 of 2005 WITH Alok Yadav, Rajesh Kumar and M. P. Devnath for the Ap pellant. I. Venkatanarayana, Navin Prakash, Rahul Kaushik and B.. Krishna Prasad for the Respondent. · · The Ju_~gment of the Court was delivered by· 0 E ·l F Dr. ARIJIT PAS~YAT, J.

In these appeals challenge is to the order by the Customs Excise and Service Tax Appellate Tri bunal, South Zonal Bench, Bangalore (in short the '1CESTAT'). Before the CESTAT the issue related to the eligibility of the ap- G pellantfor the benefit of exemption under Notification No.8/97- CE 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 134 SUPREME COURT REPORTS ~· -. [2008] 10 S.C.R. 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 pro B . duced or manufactured in India other than in a 100% EOU.

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. c

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 men tioned 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 ac cepted the s!and of the revenue. It was held that the respondent was not entitled to the benefit of Notificati911No, 8/97. E

It heJd that in Commissioner of Central Excise & Cus- toms, Indore v. Century Denim (2001) 129 EL T 657 (T) the Tri bunal 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 an Yitem 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 - .. ,. --