ORDER
S.L. Peeran, Member (J)
1. This appeal arises from OIO No. 09/2003 dated 30.08.2003 by which the demands have been confirmed on the ground that the appellant assessee is ineligible to avail modvat/cenvat credit during the period from 7/98 to 10/01 on the quantity of 9818.18 MTs of Molasses used in the manufacture of RS and cleared outside the distilleries for the manufacture of Indian Made Liquor on behalf of the assessee under Rule 57I/57AH of CE Rules read with Rule 12 of CENVAT Credit Rules, 2001. A further demand of Rs. 19,63,635/- has also been confirmed by holding that the assessee is ineligible to avail proportionate Modvat/Cenvat Credit availed by the assessee during the period from 11/2001 to 03/2002 on the quantity of 3927.270 MTs of Molasses used in the manufacture of RS and cleared outside to the distilleries for the manufacture of Indian Made Liquor on behalf of he assessee under the said provisions. An amount of Rs. 33,74,880/- and Rs. 13,79,520/- has been appropriated which has been paid by the assessee representing the amount equal to 8% of the value of Rectified Spirit cleared to the outside distilleries during the said period. There is imposition of penalty of Rs. 21,18,325/-. The Commissioner has relied on the Board’s Circular No. 615/6/02/CX dated 04.02.2002 which clarifies that in case of ethyl alcohol, non-excisable or exempted is exempted product i.e. RS is manufactured out of molasses the duty becomes payable on molasses and no credit of duty paid on in-house manufactured molasses shall be available. The Commissioner has held that it means that when the assessee was manufacturing RS, which is an exempted final product, there is no provision to avail the credit of duty paid on in-house manufactured molasses. He has held that assessee has manufactured molasses in-house during the course of manufacture of Sugar and manufactured RS out of molasses so produced. Hence, in view of the said Circular, the assessee was not eligible to avail the credit of duty paid on in-house manufactured molasses used in the manufacture of RS, which they had cleared to the outside distilleries for the manufacture of IML products on their behalf. In the present case, the assessee had paid 8% of the price of the Rectified Spirit cleared to the outside distilleries for the manufacture of their IML products in terms of Rule 57CC/57AD of CE Rules. It was alleged in the Show Cause Notice that the assessee, in the circumstances of the case, are not supposed to reverse 8% of the price of the exempted product i.e. Rectified Spirit at the time of their clearance in terms of the said Rules and should have reversed/paid the proportionate credit availed by them against the Molasses used as input for the manufacture of RS which they had cleared to the outside distilleries for the manufacture of their IML products (which is non-excisable) on their behalf. The dispute in the case is as whether the assessee is eligible to pay 8% of the price of the Rectified Spirit, an exempted product in terms of Rule 57CC/57Ad or they are under legal obligation to reverse the proportionate credit availed on Molasses, an input used in the manufacture of RS which they had cleared to the outside distilleries for the manufacture of their IML product.
2. The learned Counsel submits that this very issue involved in this appeal was adjudicated in their another appeal in E/374/2002 by this Bench and this Bench was pleased to allow the same by Final Order No. 852/2004 dated 05.05.2004. He produced a copy of the said order.
3. The learned SDR reiterated the submissions.
4. On a careful consideration, we find that the Tribunal, in the Final Order No. 852/2004 dated 05.05.2004 has examined this very issue on the very charge and has upheld the assessees’ contention by applying the ratio of the Tribunal ruling rendered in the case of Kesar Enterprises v. CCE – . The Tribunal has held that the assessees are entitled to avail Modvat credit on the Molasses and they were liable to pay the amount @ of 8% of the value of the Rectified Spirit being cleared for manufacture of IML in terms of Rule 57CC of the CE Rules. In view of the matter having been decided in the assessees’ favour by this Bench in their own case, the impugned order is set aside and the appeal is allowed by applying the ratio thereof.