Judgment
1. In the impugned order, the ld. Collector of Central Excise (Appeals) held that the Assistant Collector observed that spent sulphuric acid obtained in the course of manufacture of slurry should be cleared on payment of appropriate duty is a natural and legal consequence which automatically flows from his decision that Modvat credit on spent sulphuric acid cannot be denied. It is, therefore, a natural offshoot of the show cause notice issued in these cases and therefore, the appellant's contention that the order has gone beyond the show cause notice, is not justified. He further observed that the appeal is not sustainable in law and on facts.2. The facts of the case in brief are that the appellants are engaged in the manufacture of acid slurry. During the course of manufacture of acid slurry, spent sulphuric acid is generated as bye-product. A question, therefore, arose whether spent sulphuric acid is 'goods' for purposes of levy of Central Excise duty and if so, what is its classification. Further issue that arose was whether Modvat credit shall be reversed while clearing spent sulphuric acid.
3. Shri J.S. Agarwal, ld. Counsel submits that similar issue came up before the Larger Bench. He therefore, prays that a decision may be taken on the basis of Larger Bench findings.
4. Shri S.K. Das, ld. JDR also referred to the same decision of the Larger Bench and submits that all the three issues have been decided by the Larger Bench.
5. We have heard the rival submissions. We note that similar issue came up before the Larger Bench of this Tribunal in the case of Keti Chemicals contained in the Larger Bench Misc. Order No. 52/99-C, dated 2-7-1999 the Larger Bench of this Tribunal in the above case held that spent sulphuric acid is 'goods' for the purpose of levy of duty; that it is classifiable under Chapter Heading 28.07 and that Modvat credit taken on the inputs used in the manufacture of spent sulphuric acid shall not be reversed. There is no other contrary decision. We do not see any reason to disagree with this decision of the Larger Bench of this Tribunal. Following the ratio of this decision of the Larger Bench of this Tribunal, we hold that spent sulphuric acid is 'goods' for purposes of levy of duty. We also hold that spent sulphuric acid shall be classifiable under Chapter Heading 28.07. We further hold that Modvat credit will not be reversed at the time of clearance of a spent sulphuric acid on payment of duty.