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2015 (6) TMI 116 - HC - Central ExciseDuty demand - whether "Zn-dross" is excisable goods or not - Held that:- Petitioners have actually sold away this "Zn-dross" in open market for lakhs of rupees. These lakhs of rupees have been mentioned in all the four O-in-Os by the Assistant Commissioner of Central Excise, Jamshedpur. Therefore, "Zn-dross" is undoubtedly produced by these petitioners and they are produced as a by-product of galvanized tubes. Several times it happens that several by-products are also produced whenever main product is being manufactured Though the zinc dross produced by M/s Neepaz Tube Pvt Ltd had zinc contents more than 96 % in it, they cleared the same with-out payment of central excise duty and they neither reflected the production of zinc dross in their Daily Stock Account nor did they disclose this fact to the department through monthly ER-1 Return or through any other documents/submission. On the basis of specific classification of Zinc Dross in Central Excise Tariff with the amendment CETA, 1985 (Central Excise Tariff (Amendment) Act, 2004) wef 28.02.2005, an investigation was conducted by the department and sample of the zinc dross was drawn and tested and National Metallurgical Laboratory, Jamshedpur as regards to the recovery of percentage of zinc in the said zinc dross and it found to have contained 96.08 % of Zinc in it which is much more higher than the prescribed minimum percentage to qualify its place in tariff item No. 79020010 of Central Excise Tariff (Amendment) Act, 2004 w.e.f 28.02.2005 and thereby it is liable to Central Excise Duty @ 16 %Adv.” It is produced due to manufacturing process of galvanized tubes and it is commercially another item and as it is marketable, it is excisable goods. Thus, all the ingredients of Section 2(d) and 2(f) have been fulfilled by "Zn-dross". This item is, therefore, excisable and thus, no illegality has been committed by the Assistant Commissioner, Jamshedpur while passing order in O-in-O in all these four writ petitions. - "Zn-dross" has been sold away by these petitioners in the open market. There is definite sale value of the "Zn-dross" and, therefore, ad valorem duty is levied by the order of Assistant Commissioner of Central Excise, Jamshedpur and thus no illegality has been committed by the Assistant commissioner of Central Excise in passing Order-in-Originals. Zinc content is more than 96% in a "Zn-dross" which is a byproduct of main manufacturing process of galvanized tubes and this by-product viz. "Zn-dross" is a commercially another item, which is saleable and purchasable in a market. In the facts of the present case, actually it has been sold away by the petitioners worth rupees several lakhs, the “Zinc-dross” produced by these petitioners is undoubtedly arising out of manufacturing process and is undoubtedly excisable goods and, therefore, under the charging Section viz. Section 3 of the Central Excise Act, 1944 the central excise duty is rightly imposed and levied by the Union of India. - no reason to entertain these writ petitions - Decided against assessee.
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