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Hindustan Zinc Ltd. and Others V/S C.E. & S.T.-Udaipur and Others.


Company & Directors' Information:- HINDUSTAN ZINC LIMITED [Active] CIN = L27204RJ1966PLC001208

Company & Directors' Information:- CE-N (INDIA) PRIVATE LIMITED [Strike Off] CIN = U72900PN2012PTC145470

    Appeal No. E/52695, 52396, 52397/2015-EX (DB) [Arising out of the Order-in-Original No. OIA-UDZ-EXCUS-000-COM-0013-14-15 dated 20/03/2015 passed by Commissioner of Central Excise-Udaipur/Jaipur] and Final Order Nos. 50401-50403/2018

    Decided On, 01 February 2018

    At, Customs Excise Service Tax Appellate Tribunal New Delhi

    By, THE HONORABLE JUSTICE: DR. SATISH CHANDRA (PRESIDENT) & THE HONORABLE JUSTICE: V. PADMANABHAN
    By, MEMBER

    For Petitioner: Amit Jain and Rahul Tangri, Advocate And For Respondents: M.R. Sharma, DR



Judgment Text


1. The present set of appeals have been filed against the Order-in- Original No. 13/2014-15 dated 20/03/2015. The dispute pertains to the period October, 2008 to February, 2013. Vide the impugned order the adjudicating authority confirmed the demand of Central Excise duty along with interest and penalty of equal amount on the appellant assessee. In addition, penalty of Rs. 5 Lakh each has been imposed on Shri Azad Shah, General Manager, Finance as well as Shri P Roy, Associate General Manager, Process, under Rule 26 of the Central Excise Rules, 2002. Aggrieved by the impugned order the present appeals have been filed.

2. The appellant is engaged in the manufacture of Zinc, Lead, etc. at its Chanderia Lead Zinc Smelter Plant, in Distt. Chittorgarh. The Appellant is availing CENVAT credit on inputs, capital goods and input services, in terms of the provisions of the CENVAT Credit Rules, 2004 ('Credit Rules'), as in force during the relevant period.

3. The ore mined from the mines contains Zinc and Lead, along with several impurities. The ore is treated in the Concentration plant at the mines to obtain Zinc and Lead concentrates, which are received in the smelter unit. There are two processes employed in the Appellant's factory, for extraction of zinc, viz. (i) Hydro-metallurgical process and (ii) Pyro-metallurgical process. The technology employed in the former process does not produce any silver and has not been disputed. The latter process is a three-stage process, whereby zinc and lead both are extracted from the combined mixture of zinc concentrate, lead concentrate and bulk concentrate. The three stages in this process are Sinter Plant, Imperial Smelting Furnace and Refineries.

4. The Pyro-metallurgical process starts with the feeding of zinc concentrate, lead concentrate and bulk concentrate, in specified proportion, in the Sinter Plant where Sulphur is removed from the concentrates to obtain zinc oxide and lead oxide and agglomerates the product into porous, high strength lumps, called sinter. The hot sinter is charged into the Imperial Smelting Furnace, wherein various reactions take place. The oxides are reduced to lead bullion and zinc bullion. The zinc bullion (also known as Furnace Zinc), being light, stays at the top of the Furnace and is obtained by the process of vaporization and condensation and is taken to the Zinc Refinery.

5. The molten lead bullion (with impurities, viz. copper, silver, antimony etc.), being heavy, remains at the bottom of the Imperial Smelting Furnace and is taken to the Lead Refinery to obtain Lead Ingots. During the process of refining, Silver emerges as a by-product which contains approx. 65-70%Lead, 10-15% Zinc, 5-7% Copper, 4-5% Silver and certain other impurities. This is further processed to recover Zinc and Lead, thus, leaving Silver (a by-product) during the elimination process.

6. During the relevant period, the Appellants cleared Silver from its factory, without payment of duty. The department entertained a view that Silver is an exempted product, hence the Cenvat credit attributable to inputs and input services used in the manufacture of Silver is liable to be reversed in terms of the provisions of Rule 6 of the Credit Rules.

7. Accordingly, show cause notice dated 06/11/2013 was issued to the appellant and after the due process of adjudication the impugned order was passed. Aggrieved by the same the present set of appeals have been filed.

8. With the above background we heard Shri Amit Jain, Ld. Counsel for the appellant as well as Shri M R Sharma, Ld. DR for the Revenue.

9. Shri Amit Jain summarized the arguments of the appellants as follows:-

i. The dispute pertains to the Silver which is recovered as a by- product in the course of Pyro-metallurgical process which is used by the appellant in his factory to manufacture zinc and led. The silver emerges as a by-product and is cleared without payment of duty. Revenue has taken the view that it is an exempted final product incurring mischief of Rule 6 of the Cenvat Credit Rules, 2004. Accordingly, the appellant has been directed to pay the amount in terms of Rule 6 (3).

ii. He submitted that silver is not an item which is manufactured by the appellant but which emerges as a by-product incidentally on account of technical process. He submitted that it has been held by the Tribunal for an earlier period that there is no requirement to reverse cenvat credit attributable to the quantum of inputs that can be considered as used in the manufacture of silver. In this connection he relied on case of CCE, Udaipur v. Hindustan Zinc Ltd. 2017 TIOL 2552 CESTAT Delhi.

iii. The Adjudicating Authority has also held that the appellant is not entitled to the benefit granted under Rule 6(6)(vi) wherein it has been specified that there will be no need to reverse the credit attributable to inputs and input services in case common inputs/input services are used in the manufacture of gold or silver falling within Chapter 71 of the First Schedule, arising in the course of manufacture of copper or zinc by smelting. The adjudicating authority did not give benefit of the above rule by taking the view that silver is arising during the manufacture of lead by smelting.

He continued to argue that silver has emerged during the metallurgical process undertaken in the zinc and lead smelting plant from which both zinc and lead are manufactured. He also argued that the department was not justified in raising such demand by undertaking the extended period of limitation.

10. The Ld. DR justified the impugned order. He submitted that the total value of silver recovered is much more than the value of lead/Zinc manufactured by the appellant. The silver emerging is covered under Tariff heading 7106 and is an exempted product. Such silver is to be considered as a manufacture product along with zinc and lead and consequently the mischief of Rule 6 of the Cenvat Credit Rules, 2004 will be incurred and the appellant will be liable to reverse the Cenvat Credit attributable to inputs/input services used in silver. He further argued that the investigation undertaken by the department has established that silver is arising during the metallurgy of lead and therefore the provision of Rule 6 (6)(vi) of the Cenvat Credit Rules is not applicable. He also sought to differentiate the case law relied upon by the appellant. In that connection he submitted that the CESTAT's order pertains to the period April, 2002 to Feb, 2003 when only a small quantity of silver was being manufactured. However, after 2005 the appellant has installed large scale commercial production of silver and hence the same cannot be considered as a by-product but a main product.

11. We have heard both sides and perused the record of the case. The dispute pertains to silver which is recovered during the course of the Pyro-metallurgical process by the appellant in which zinc concentrate, lead concentrate as well as bulk concentrate are charged. From the Imperial Smelting Furnace, Zinc bullion which floats at the top and the lead along with impurities such as copper/silver is removed from the bottom and taken to lead refinery, to obtain lead ingots. Silver emerges in the process of refining.

12. We have carefully considered the order cited by the appellant in their favour which pertains to the identical issue for earlier period. The observation of the Tribunal is reproduced below:-

"9. The respondent received ore concentrates and used them fully in the manufacture of zinc and lead. Silver crust which was further put to process for recovery of base metal and silver, emerges as a by-product during the course of manufacture and refining of zinc and lead. In other words, all the inputs have been put to intended use and it is not the case that some portion of input is not put into use in the manufacture of zinc and lead. This position has been admitted by the Revenue also. If such is the case there can be no input which is solely attributable to the manufacture of small quantity of by-product namely, silver. The said silver is extracted as a by-product by the respondent whose intended/main manufacturing process is aimed at manufacture of non-ferrous metal like zinc and lead. The respondent also obtain various other by-products like sulphuric acid etc. In fact with reference to sulphuric acid emerging as a by-product, it was held in the respondent's own case that there is no need for reversal of Cenvat credit on proportionate basis in Hindustan Zinc Limited v. CCE, Jaipur - II reported in : 2004 (178) E.L.T. 255 (Tri. - Del.). Reference can also be made to the decision of Hon'ble Supreme Court in respondent's own case reported in 2014 9 EX/59850 of 2013 (303) E.L.T. 321 (S.C.). The Hon'ble Supreme Court observed as below :-

"26. Furthermore, the provisions of Rule 57CC cannot be read in isolation. In order to understand the scheme of Modvat credit contained in this Rule, a combined reading of Rules 57A, 57B and 57D along with Rule 57CC becomes inevitable. We have already reproduced Rule 57D above. It can be easily discerned from a combined reading of the aforesaid provisions that the terms used are 'inputs', 'final products', 'by-product', 'waste products', etc. We are of the opinion that these terms have been used taking into account commercial reality in trade. In that context when we scan through Rule 57CC, reference to final product being manufactured with the same common inputs becomes understandable. This Rule did not talk about emergence of final product and a by-product and still said that Rule 57CC will apply. The appellant seeks to apply Rule 57CC when Rule 57D does not talk about application of Rule 57CC to final product and by-product when the by-product emerged as a technological necessity. Accepting the argument of the appellant would amount to equating by-product and final product thereby obliterating the difference though recognised by the legislation itself. Significantly this interpretation by the Tribunal in Sterlite (supra) was not appealed against by the department.
10. In view of the above analysis of the legal position, we find that the necessity of the respondent to reverse the proportionate credit itself appears to be not sustainable. Even so, the respondents did reverse the proportionate credit attributable to the quantum of inputs that could be considered as used in the manufacture of silver. The quantity based proportion calculated 10 EX/59850 of 2013 by the respondent is now being contested by the Revenue. The plea is that the final product value should form basis of such proportion. As already noted, we find no legal basis for such contention by the Revenue."

13. Observation of the Tribunal as above is very much applicable to the subsequent period also. The Ld. DR has attempted to differentiate the above case as pertaining to the period prior to the installation of the present smelting furnace but we are of the view that the ratio of the Tribunal is equally applicable for the subsequent period since the same is based on the Hon'ble Supreme Court's observation in another case pertaining to the same appellant in respect of another by-product. By following the cited decisions we are of the view that there is no necessity for the appellant, to reverse cenvat credit attributable to the quantum of inputs that could be considered as used in the manufacture of silver.

14. Before we part with the matter we also need to discuss the arg

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uments raised by Revenue saying that Rule 6 (6) (vi) will not be applicable to the present case. Above provision in the Cenvat Credit Rules, waives the requirements specified in sub-rule (1) (2) (3) and (4) in case the excisable goods removed without payment of duty are gold or silver arising in the course of manufacture of copper or zinc by smelting. The view taken by revenue is that silver is emerging in the process of manufacture of lead not zinc and hence it has been argued that Rule 6 (6) (vi) will not be applicable. After considering the process of manufacture, we find that the input to the Pyro-metallurgical process is zinc and lead concentrate. In the first part of the process, Zinc is recovered and in the second part, lead is recovered along with the by-product silver. We are of the view that the silver in the present case has indeed emerged in the process of manufacture of zinc by smelting. Accordingly, the appellant will be entitled to the benefit granted by Rule 6(6) (vi) of the Cenvat Credit Rules, 2004. 15. In view of the discussions above, we find no justification for the demands made vide the impugned order. The demand is set aside along with the penalties imposed on all the persons. 16. In the result, all the appeals are allowed.
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