2013 (7) TMI 51 - AT - Central Excise

Duty on waste / scrap - exemption under notification 89/95-CE - Gums/waxes and Recovered Oil/Fatty Acids - The ground taken by the Department in the Show-cause notices to deny the benefit was that, the said goods are neither waste nor scrap in as much as the said goods have marketability & the said goods have been sold to the manufacturer of washing soap. - Held that – The impugned goods are waste for the purpose of benefit of Notification No. 89/95 can not be decided on the basis of markebality. This is for the simple reason that exemption pre-supposes excisability which, in its turn, pre-supposes marketability. Non-marketability cannot, therefore, be the test for deciding whether the goods in question satisfy of the definition of "waste" for the purposes of Notn 89/95-CE. Else, the exemption itself would become redundant and futile.

Also word "waste" has to be read as being similar character to the words "Scrap and parings are marketable and having the value in commercial trade.

Conflicting decisions by the Courts of co-equal Benches and Co- ordinate benches – As per The State of Gujarat Versus Raipur manufacturing co. Ltd. [1966 (9) TMI 82 - SUPREME COURT OF INDIA] - the judgment which states the law accurately has to be followed and mere incidence of time whether the judgments of co-equal benches are earlier or later is hardly relevant. - Decided in favor of assessee.

Decision in A G Flats (2011 (7) TMI 968 - CESTAT, NEW DELHI) distinguished wherein it was held that, the spent earth arising in course of refining of oil, being of no value, is not a new product or a by-product.