TMI Blog2011 (6) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd., reported in [2004 (2) TMI 68 - SUPREME COURT OF INDIA], wherein it was held that zinc dross, flux skimming and zinc scalings arising as a by-product during galvanization of steel sheets, are not excisable goods - Circular No.904/24/2009-CX dated 28/10/2009 issued by the CBE&C, - Merely because an item is specified in the tariff chargeable to a rate of duty, it cannot be concluded that they are excisable goods, i.e., they are manufactured and marketable goods - Held that: zinc dross arising in the process of galvanization of the C.R. Sheets cannot be considered to be a marketable and excisable products prior to May 2008 - Decided in favor of the assessee - E/696 & 697/09 - - - Dated:- 30-6-2011 - Mr. Ashok Jindal, Mr. P.R. Chand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Chapter sub heading no.79020010 of the CETA in respect of Zinc bottom dross having zinc content of 92% or more and under sub heading no.79020090 of the CETA in respect of zinc dross having zinc content less than 92% arising during the course of continuous line galvanization of C.R. Coils and demanding central excise duty amounting to Rs.1,32,98,369/- under Section 11A of Central Excise Act, 1944. Interest on the said amount of duty was also demanded under Section 11AB of the said Act and it was also proposed to impose penalty on the appellant under Rule 25 of the Central Excise Rules, 2002. The said show-cause notice was adjudicated by the Commissioner vide the impugned order and the Commissioner confirmed the duty demand of Rs.1,32 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC). The Ld. Advocate also relies on the judgement of the apex Court in the Indian Aluminium Co. Ltd., cited supra. In the said case while considering the exigibility of zinc dross, the apex Court held that in the Excise Tariff there is no legal fiction of deeming residues with more than certain percentage of metal as manufactured or excisable. Merely because there is some presence of some percentage of metal in dross, it does not render the goods excisable. The article does not become excisable to tax only because of some saleable value. The Ld. Advocate also relies on the judgement of the apex Court in the case of CCE, Patna Vs. Tata Iorn Steel Co. Ltd., reported in 2004 (165) ELt 386 (SC) wherein it was held that zinc dross, flux ski ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2 of the Central Excise Act, 1944 was amended by adding an explanation that for the purposes of this clause, 'goods' include any article, material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable. 4.?It is clarified that with this amendment in Section 2(d), the bagasse, aluminium/zinc dross and other such products termed as waste, residue or refuse which arise during the course of manufacture and are capable of being sold for consideration would be excisable goods and chargeable to payment of excise duty." 3.1 The above clarification issued by the CBE C makes it absolutely clear that prior to 2008, zinc dross, zinc ash and flux skimmings, etc. cannot be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise tariff with a rate of duty mentioned against these items, they have to be held as excisable goods as per the definition of excisable goods provided in the Central Excise Act. He further submits that the goods have been sold by the appellant for a consideration and, therefore, the marketability is clearly established. He further relies on the judgement of the hon'ble apex Court in the case of CCE, Chandigarh Vs.Gurudaspur Distillery, reported in 2008 (224) ELT 337 (SC) wherein it was held that an article to become liable to excise duty, two conditions should be satisfied, namely, it should be mentioned in the tariff and it should be marketable. He contends that both these conditions are satisfied in the instant case and, therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y because zinc dross and flux skimmings are sold, they cannot be held to be marketable as even rubbish can be sold in the market. In the said case, the hon'ble apex Court further held that everything which is sold is not necessarily a marketable commodity known to commerce and which, it may be worthwhile to trade in. All the above decisions of this Tribunal and the apex Court have been rendered specifically in the context of excisability and marketability of zinc dross and skimmings and these decisions categorically conclude that zinc dross/skimmings cannot be considered to be excisable/marketable even though there may be specific entry in the Central Excise Tariff covering the product. 5.2 The judgments relied upon by the Ld. DR deal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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