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2015 (8) TMI 833 - AT - Central ExciseDuty demand - Duty on fly ash - whether fly ash obtained by burning of coal in the boiler the course of manufacture of sponge iron is dutiable - Held that:- Fly ash is not containing metal or metal oxide. Though the ash obtained by the incineration of municipal waste and other type of ash is covered under heading 2621, the Tribunal in series of judgements mentioned above, as held that such fly ash is not excisable - Tribunal in the case of Shaw Wallace Gelatines Ltd. [2001 (3) TMI 379 - CEGAT, NEW DELHI] has been held that coal ash is obtained from burning of coal as fuel for production of steam, is not an excisable product and not leviable to duty under heading 26.21 of Central Excise Tariff. The same view has been taken by the Apex Court in the case of Union of India vs. Ahmedabad Electricity Co.Ltd. (2003 (10) TMI 47 - SUPREME COURT OF INDIA). It is settled law that just because an item is covered some heading/sub-heading of the tariff, it would not become excisable, unless there is evidence on record to prove that the same is marketable in the sense that it is worthwhile to trade in that product and there is existence of market for the same. It is also well settled law that the burden of proving the marketability is on the department. In this case, the appellant is not selling the fly ash and the appellant offered the same free to any person who was ready to lift the same. The department has not been able to prove with tangible evidence that there is existence of market for the ash. - appellant have made a strong prima facile case in their favour.- Decided in favour of assessee.
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