ORDER 1. Revenue is in appeal against the judgment of CESTAT dated 23.7.2013 raising the following questions for our consideration: (A) Whether in the facts and circumstances of the Hon’ble Customs, Excise and Service Tax Appellate Tribunal (CESTAT) West Zonal Bench, Ahmedabad, while passing Order No. A/10878/WZB/AHD/13 dated 23.07.2013 has committed an error allowing the Cenvat Credit of duty on the basis of the duty purportedly paid on the goods exempted from payment of Excise duty? (B) Whether in the facts and circumstances of the case the Hon’ble CESTAT has committed an error in concluding that Cenvat Credit on the inputs received is admissible to the respondent on the ground that no action is taken by the Revenue at the supplier’s end, especially when there are no provisions of law for such action? (C) Whether in the facts and circumstances of the case it was obligatory upon the Hon’ble CESTAT to apply the ratio of the cited judgment to the facts of the present case and same be reflected in the order? 2. Briefly the issue is as follows. The respondent assessee purchased a product called Zinc Dross which was a byproduct of a manufacturing activity carried on by the supplier of the goods to the respondents. It is not in dispute that that the supplier paid excise duty on the basis that the product was excisable. It is not in dispute that such duty was never claimed by way of refund and no dispute was raised at the end of the supplier about the dutiability of the said product. The department also accepted the assessment and classification supplied by the supplier and appropriated the duty as declared. 3. In case of Collector of Central Excise, Patna vs. Tata Iron and Steel Co. Ltd. 2004 (165) ELT 386 (SC), the question of dutiability of such product came up before the Supreme Court on the ground that such product was a mere byproduct of the manufacturing activity. It was held that no excise duty would be leviable on Zinc Dross. It was observed that merely because the assessee was selling the said byproduct, would not mean that the same was a marketable commodity. In short, the Supreme Court held that there was no excise duty liability on the sale of Zinc Dross. 4. It was held that no excise duty would be leviable on Zinc Dross. It was observed that merely because the assessee was selling the said byproduct, would not mean that the same was a marketable commodity. In short, the Supreme Court held that there was no excise duty liability on the sale of Zinc Dross. 4. The respondent assessee on purchase of such goods utilised the same as input in ts own manufacturing activity and claimed cenvat credit of the duty paid by the supplier. The Revenue contested this stand of the respondent on the ground that since no duty was payable on Zinc Dross by the manufacturer, in terms of Rule 3 of Cenvat Credit Rules, 2004, the assessee was not entitled to avail the credit of such duty. Ultimately, when the issue reached the tribunal, the tribunal in the impugned judgment relying on decision of Supreme Court in case of Commissioner of Central Excise & Customs vs. MDS Switchgear Ltd. 2008 (229) ELT 485 (SC), held that the assessee was entitled to cenvat credit. 5. Shri Kogje for the department drawing our attention to rule 3 of the Cenvat Credit Rules, 2004, submitted that the manufacturer or producer of final products or a provider of taxable service would be allowed to take cenvat credit of the duty of excise specified in the First Schedule to the Excise Tariff Act. In the present case, since the product was not dutiable, no cenvat credit could be availed. The amount deposited by the manufacturer was not duty. 6. On the other hand, learned counsel Shri Nainawati for the respondent opposed the appeal contending that the department had accepted the assessment of the supplier of the goods. Such goods were received by the respondent as input and utilised for manufacture of output service. The conditions for availing cenvat credit were thus satisfied. He relied on decision of the Supreme Court in case of MDS Switchgear Ltd. (supra) as well as Sarvesh Refractories Pvt. Ltd. vs. Commissioner of C. Ex & Customs, 2007 (218) ELT 488 (SC). 7. Rule 3 of the Cenvat Credit Rules, 2004 allows a manufacturer or producer of final product or a provider of taxable service to take cenvat credit of the duty of excise specified in the First Schedule to the Excise Tariff Act. 7. Rule 3 of the Cenvat Credit Rules, 2004 allows a manufacturer or producer of final product or a provider of taxable service to take cenvat credit of the duty of excise specified in the First Schedule to the Excise Tariff Act. Rule 4 of the Cenvat Credit Rules, 2004 lays down the conditions for allowing cenvat credit. Sub-rule (1) thereof provides that cenvat credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer or in the premises of the provider of output service. Proviso to sub-rule (1) puts certain limitations on such immediate availibility of cenvat credit. We are however, not concerned with the proviso. 8. In terms of rule 3 and 4 of the Cenvat Credit Rules, 2004, a manufacturer would be entitled to avail the cenvat credit in respect of the inputs used for the manufacture of a final product or in providing taxable service of the excise duty specified in First Schedule to the Excise Tariff Act. Insofar as the respondent is concerned, he had purchased the inputs and utilised the same for manufacture of a final product. Such goods were duty paid. Rule 3 and 4 of the Cenvat Credit Rules, 2004, thus would enable him to avail the cenvat credit. It is a different thing that the supplier of the goods to the respondent paid excise duty on such product under mistaken belief. In law as declared by the Supreme Court in case of Collector of Central Excise, Patna vs. Tata Iron and Steel Co. Ltd. (supra), no duty was payable on such product. Strictly speaking therefore, such amount deposited by the original manufacturer would not partake the character of excise duty. However, when the department did not dispute the classification of such manufacturer, accepted the declarations and duties, cenvat credit on such duty cannot be declined to the purchaser of the goods who otherwise fulfilled all conditions for availing cenvat credit thereof. 9. Case is substantially similar to one before the Supreme Court in case of MDS Switchgear Ltd. (supra). However, when the department did not dispute the classification of such manufacturer, accepted the declarations and duties, cenvat credit on such duty cannot be declined to the purchaser of the goods who otherwise fulfilled all conditions for availing cenvat credit thereof. 9. Case is substantially similar to one before the Supreme Court in case of MDS Switchgear Ltd. (supra). In the said case, the tribunal while accepting the department’s allegation of inflation of the value of intermediate goods to load the assessable value, observed that if the department was of the opinion that the value of the final product was depressed, it could have charged the original manufacturer unit in under in voicing their product. This was however, not done. Valuation was duly approved and the payment duty was also accepted. The tribunal further observed that “We find absolutely no substance in the attempt of the learned Commissioner to convert a part of the duty so paid into deposit of duty. There is no legal basis for such presumption. The rules entitled the receipt manufacturer to avail of the benefit of the duty paid by the supplier manufacturer. A quantum of duty already determined by the jurisdictional officers of the supplier unit cannot be contested or challenged by the officers in charge of recipient unit.” 10. This judgment by speaking order was upheld by the Supreme Court. 11. In the result, tax appeal is dismissed.