TMI Blog2009 (11) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... H. Shukla, JJ. REPRESENTED BY : Shri R.J. Oza, Sr. Standing Counsel, for the Appellant. [Order per : Rajesh H. Shukla, J. (Oral)]. - The present Tax Appeal has been preferred under Section 35G of the Central Excise Act, 1944 by the appellant for raising the following substantial questions of law inter alia : (A) Whether in the facts and circumstances of the case, the copper sludge and copper mud arising during the course of manufacture of zinc sulphate, is waste and the same is or is not capable to attract excise duty payable on the excisable item? (B) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in applying ratio laid down by the Apex Court in case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tine removal by way of mis-statement or suppression of fact is not correct. As per the amendment, where the duty is short levied or short paid, the person is liable to pay as per sub-section (2) of Section 11A and in addition thereto is liable to pay the interest. Mr. Oza further submitted that it is not the contention of the respondent that the goods are not liable for duty. He has also referred to the defence submissions which have been highlighted, and submitted that in the facts of the case there was a process and the duty was payable for the copper sludge in the market which has been disposed of as a waste. He further submitted that the Tribunal has failed to appreciate about the aspect of marketability of such waste arising in course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process and the aspect of marketability of such byproducts or the waste. The submissions which have been made, have been aptly considered by the authorities below, i.e. Commissioner (Appeals), Central Excise and Customs, Daman and also by the Commissioner (Appeals). 5. The Tribunal has also dealt with these submissions and relied upon the judgment of the Hon'ble Apex Court in case of Collector of Central Excise, Patna v. Tata Iron Steel Co. Ltd., 2004 (165) E.L.T. 386 (S.C.) on the aspect of marketability in respect of sale of waste arising in course of manufacture of finished goods and also quoted the observations of the Hon'ble Apex Court as under : "Dross and skimmings - Excisability of - Zinc dross, flux skimming and zinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, such Copper Sludge is a different article and not a waste. The process of manufacture admittedly is of zinc sulphate (Agricultural Grade) and it is not even the department's case that the ultimate aim of manufacture was manufacturing the Copper Sludge, but the manufacture was that of zinc sulphate (Agricultural Grade). It is in the process of such manufacture of zinc sulphate (Agricultural Grade) that the waste like Copper Sludge (Agricultural Grade) would arise and therefore the submissions made by learned counsel Mr. Oza on the aspect of manufacture or the process cannot be accepted especially when during the process of manufacture of Zinc Sulphate (Agricultural Grade) the Copper Sludge has emerged, which is not excisable article. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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