ORDER : 1. The short question which arises for determination in these civil appeals filed by the Department under section 35L of Central Excise Act, 1944 is: Whether Lean Gas produced by Gas Authority of India Limited (GAIL) is a manufactured marketable final product or by-product? 2. On April 1, 1999, show cause notice was issued to the assessee by the Superintendent, Central Excise, in which it was alleged by the Department that the fnoticee (assessee) had cleared Lean Gas in bulk to M/s. Indian Petrochemicals Corporation Limited (IPCL), M/s. Vikram Ispat Ltd., and M/s. Ispat Industries as Natural Gas under Chapter Heading 2611.21 claiming nil rate of duty. In the said show cause notice, however, the allegation was based on the footing that Lean Gas was a by-product after due manufacturing process stood carried out on Natural Gas to extract LPG. We quote hereinbelow the relevant portion from the show cause notice, which reads as under: "However it is found that Lean Gas is a by-product after due manufacturing process on Natural gas to extract L.P.G. Hence Lean gas is a result of a manufacturing process and therefore attract provisions of rule 57CC of the Central Excise Rules, 1944. Thus the Noticee has failed to pay C.Ex. Duty on amount equal to 8% of the price charged on the sale of the Lean Gas as required under rule (1) and (8) of rule 57CC during the period October 1998 to January 1999, having availed Modvat credit on inputs used within the factory for the manufacture of final products." 3. At this stage, we may mention that the assessee claimed Modvat credit under Rule 57D which states that Modvat credit shall not be denied or varied except in certain circumstances. In other words, under Rule 57D, credit of specified duty could not be denied at the relevant time in certain circumstances even where the final product stood exempted. We quote hereinbelow Rule 57D of Central Excise Rules, 1944: "Rule 57D. In other words, under Rule 57D, credit of specified duty could not be denied at the relevant time in certain circumstances even where the final product stood exempted. We quote hereinbelow Rule 57D of Central Excise Rules, 1944: "Rule 57D. Credit of duty not to be denied or varied in certain circumstances.----(1) Credit of specified duty shall not be denied or varied on the ground that part of the inputs is contained in any waste, refuse, or by-product arising during the manufacture of the final product, or that the inputs have become waste during the course of manufacture of the final product, whether or not such waste or refuse or by-product is exempt from the whole of the duty of excise leviable thereon or chargeable to nil rate of duty or is not specified as a final product under Rule 57A. (2) Credit of specified duty shall also not be denied or varied in case any intermediate products have come into existence during the course of manufacture of final products or the inputs are used in the manufacture of capital goods as defined in Rule 57Q and such intermediate products or capital goods are not chargeable to duty of excise." 4. On the other hand, the Department contended that since Lean Gas was itself a final product, the assessee was not entitled to the benefit of Modvat credit under Rule 57CC of the said Rules. We quote hereinbelow Rule 57CC which referred to adjustment of credit if the final produce stood exempted. "Rule 57CC. On the other hand, the Department contended that since Lean Gas was itself a final product, the assessee was not entitled to the benefit of Modvat credit under Rule 57CC of the said Rules. We quote hereinbelow Rule 57CC which referred to adjustment of credit if the final produce stood exempted. "Rule 57CC. Adjustment of credit on inputs used in exempted final products or maintenance of separate inventory and accounts of inputs by the manufacturer.----(1) Where a manufacturer is engaged in the manufacture of any final product which is chargeable to duty as well as in any other final product which is exempt from the whole of the duty of excise leviable there on or is chargeable to nil rate of duty and the manufacturer takes credit of the specified duty on any input (other than inputs used as fuel)which is used or ordinarily used in or in relation to the manufacture of both the aforesaid categories of final products, whether directly or indirectly and whether contained in the said final products or not, the manufacturer shall, unless the provisions of sub-rule (9) are complied with, pay an amount equal to eight per cent of the price (excluding sales tax and other taxes, if any, payable on such goods) of the second category of final products charged by the manufacturer for the sale of such goods at the time of their clearance from the factory. (2) The amount mentioned in sub-rule (1) shall be paid by the manufacturer by adjustment in the credit account maintained under sub-Rule (7) of Rule 57G or in the accounts maintained under Rule 9 or sub-Rule (1) of Rule 173G and if such adjustment is not possible for any reason, the amount shall be paid in cash by the manufacturer availing of credit under Rule 57A. (3) The provisions of sub-rule (1) shall not apply to final products falling under Chapters 50 to 63 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986). (3) The provisions of sub-rule (1) shall not apply to final products falling under Chapters 50 to 63 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986). (4) The provisions of sub-rule (1) shall also not apply to---- (a) Articles of plastics falling within Chapter 39; (b) Tyres of a kind used on animal drawn vehicles or handcarts and their tubes, falling within Chapter 40; (c) Black and White television sets, falling within Chapter 85; and (d) Newsprint, in rolls or sheets, falling within Chapter heading No.48.01; which are exempt from the whole of the duty of excise leviable thereon or chargeable to nil rate of duty. (5) In the case of final products referred to in sub-rule (3) or sub-rule (4) and excluded from the provisions of sub-rule (1), the manufacturer shall pay an amount equivalent to the credit of duty attributable to inputs contained in such final products at the time of their clearance from the factory. (6) The provisions of sub-rule (1) shall also not apply to final products which are exported under bond in terms of the provisions of Rule 13. (7) The provisions of sub-rule (1) shall apply even if the inputs on which credit has been taken are not actually used or contained in any particular clearance of final products. (8) If any goods are not sold by the manufacturer at the factory gate but are sold from a depot or from the premises of a consignment agent or from any other premises, the price (excluding sales tax and other taxes, if any, payable) at which such goods are ordinarily sold by the manufacturer from such depot or from the premises of a consignment agent or from any other premises shall be deemed to be the price for the purpose of sub-Rule (1). (9) In respect of inputs (other than inputs used as fuel) which are used in or in relation to the manufacture of any goods, which are exempt from the whole of the duty of excise leviable thereon or chargeable to nil rate of duty, the manufacturer shall maintain separate inventory and accounts of the receipt and use of inputs for the aforesaid purpose and shall not take credit of the specified duty paid on such inputs." 5. Therefore, the short question which arises for determination before this Court is whether Lean Gas was a by-product or a final product. If it is a by- product, then the assessee would be entitled to the benefit of Rule 57D. On the other hand, if Lean Gas is a final product, then the assessee would not be entitled to the benefit of Rule 57D in view of the provisions of Rule 57CC as it refers to set off/adjustment of duty payable. 6. We are not required to examine the above issue for the simple reason that on the facts of the present case, as can be seen from the extract quoted from the show cause notice, which is the foundation of the Demand made by the Department, Lean Gas is a by-product which emerges when LPG is extracted from natural gas. If the case of the Department itself in the show cause notice was that Lean Gas is a by-product, then we fail to understand as to the basis for denying the benefit of Modvat credit to the assessee during the relevant period (October 1998 to January 1999) under Rule 57D. 7. As repeatedly held by this Court, show cause notice is the foundation of the Demand under Central Excise Act and if the show cause notice in the present case itself proceeds on the basis that the product in question is a by-product and not a final product, then, in that event, we need not answer the larger question of law framed hereinabove. On this short point, we are in agreement with the view expressed by the Tribunal that nowhere in the show cause notice it has been alleged by the Department that Lean Gas is a final product. Ultimately, an assessee is required to reply to the show cause notice and if the allegation proceeds on the basis that Lean Gas is a by-product, then there is no question of the assessee disputing that statement made in the show cause notice. 8. We express no opinion on the merits of the question framed hereinabove. We are dismissing these appeals only on the facts of the present case and only on the ground that there is no allegation made in the show cause notice that Lean Gas is the final product. 9. 8. We express no opinion on the merits of the question framed hereinabove. We are dismissing these appeals only on the facts of the present case and only on the ground that there is no allegation made in the show cause notice that Lean Gas is the final product. 9. Before concluding, we may mention that in the case of Oil and Natural Gas Commission v. Collector of Central Excise, 1992 (61) ELT 3 , this Court directed the Government of India to set up a Committee consisting of representatives from Ministry of Industry, Bureau of Public Enterprises and Ministry of Law to monitor disputes between Ministry and Government of India, Ministry and Public Sector Undertaking and Public Sector Undertakings in between themselves to ensure that no litigation comes to Court or to Tribunal without the matter being first examined by the Committee. In the present case, the Tribunal has recorded that clearance was given to GAIL to prefer an appeal to the Tribunal against the order passed by the adjudicating authority and Commissioner Appeals. However, no such clearance has been given in favour of the Central Government which had preferred the present civil appeals. However, we do not wish to await the said clearance for the simple reason that in the present case we are dismissing the civil appeals filed by the Department on the factual aspect, namely, that in the show cause notice, there is no allegation that Lean Gas is the final product. 10. For the aforestated reasons, appeals stand dismissed. No order as to costs.