TMI Blog1998 (8) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... 51 of the Central Excise Tariff Act, from Perlite Ore by heating it in a furnace. The final product is graded according to the particle size and is assigned a grade number. The waste in the form of very fine powder, known as bag-house fine, which is not usable as filter aid powder, was graded by the Respondents as 414 and 424. The Assistant Commissioner confirmed the demand of excise duty under order dated 29-1-1991 holding that the filter aid powder of grade 414 and 424 is a fully manufactured product and is capable of being sold in the market and needs to be classified as filter aid powder . The Assistant Collector, in a subsequent order dated 26-2-1992, however, held that waste of filter aid powder is nothing but a chemical classifiable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reject or as scrap . He also submitted that the bag-house fines is sold in the market and under Section 2(h) of the Act, the impugned product is the goods which is sold in the ordinary course of trade or business for cash or other valuable consideration. Reference was also made to the decision in the case of Hindustan Scientific Gears and Fancy Glass Works 1985 (21) E.L.T. 195 in which Tribunal held that Bhagar i.e. broken glass could be considered as a manufactured item and as goods. 4. Shri Devan Parika, ld. Advocate submitted that the impugned product is not usable as filter aid powder; that they tried to sell the product in market but they could not sell the same which is evident from the fact that out of 1491 M.Ts. of such was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (92) E.L.T. 3 in which Supreme Court observed that whenever things like Waste and Scrap , under any head, have been sought to be taxed in the Central Excise Act, specific entries have been made for the purpose and held that prior to amendment of Item 27 of the erstwhile Central Excise Tariff with effect from 1-3-1981 when waste and scrap of aluminium was included in sub-heading (aa), the aluminium Waste and Scrap was not liable to tax. (iv) Finolax Cables Ltd. v. C.C.E., Pune 1998 (86) E.L.T. 418, the Tribunal held that waste or scrap will not be dutiable under specifically covered by the entry in the tariff schedule relying upon the decision of the Delhi High Court in Modi Rubber case 1987 (29) E.L.T. 502 (Del.). The ld. Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilkington s case, referred to above, in the absence of any specific entry, the waste product cannot be charged to duty. As per definition in Section 2(d) of the Act, the excisable goods means goods specified, in the schedule to the Central Excise Tariff Act and once there is no mention of the goods in the Schedule, the product cannot be considered to be an excisable goods leviable to Central Excise Duty under Section 3 of the Central Excise Act. We also find that the Revenue in its appeal has not adduced any ground as to why the impugned product may be classified under sub-heading No. 3802.00. On the other hand, Commissioner (Appeals) has clearly observed in order dated 31-12-1992 that no material evidence had been produced to discard the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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