bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.2 OF 2010 Commissioner of Central Excise ..Appellant Vs. M/s.Aries Pharmaceutical ..Respondent Mr.R.Ashokan with Mr.J.B.Mishra for appellant. None for respondent. CORAM :- V.C.DAGA & K.K.TATED,JJ. DATE : 8TH FEBRUARY,2010 P.C. 1. Heard. Perused appeal. 2. Learned Counsel for the Revenue sought to place reliance on the Division Bench judgment of this Court in the case of Commissioner of Central Excise, Thane Vs. M/s.Nicholas Piramal (I) Ltd. in CEXA No.9 of 2009 decided on 27 th November, 2009. In that case, the interpretation of Rule 6(3)(b) of Cenvat Credit Rules,2002 was a subject matter of judicial consideration. Whereas, the issue sought to be canvassed in the present appeal revolves around the implementation of Rule 57 (cc) of the Central Excise Rules,1944. The Tribunal has recorded a categorical finding that there is a substantial compliance of the Rule and this finding of fact is not a subject matter of challenge in this appeal. 3. The Tribunal, in paragraph No.9 of the impugned order, has recorded its findings, reading as under; 9. We have examined the portion. We note that the Revenue in its appeal has not rebutted the observations of the Commissioner, referred to above, which are based on the facts on record. We, therefore, concur with the Commissioner’s observations that the assessee has substantially complied with the provisions of maintaining the two separate accounts for inputs going in exempted and dutiable products. The stray cases, where credit was taken on the common inputs for exempted and dutiable products, the assessee has reversed the proportionate credit on their own. The Tribunal, by the majority order, in the case of M/s.Nicholas Piramal (I) Ltd. Vs. CCE, Thane-1 reported in 2008(232) E.L.T. 37 (LB), has held that the payment of 8% or 10% is not required when credit on inputs used in exempted goods is paid. For holding so, the Tribunal relied upon the Hon’ble Supreme Court judgment in the case of Chandrapur Magnet Wires Pvt. Vs. CCE, Nagpur reported in 1996(81) ELT 3 (SC) in which it was held that reversal of duty amount before removal of exempted goods amounts to non availment of credit on inputs. 4. Having gone through the aforesaid findings recorded by the Tribunal, one can reasonably come to the conclusion that the same are based on appreciation of evidence. Substantial compliance of the rules is recorded. We, therefore, do not find any substantial question of law arising in the appeal. 5. In these these circumstances, the appeal is liable to be dismissed in limine for want of substantial question of law with no order as to costs. Order accordingly. (K.K.TATED,J.) (V.C.DAGA,J.)