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2015 (11) TMI 771 - AT - Central ExciseLevy of duty on by-product or a waste - Lower authorities have referred to an addition of Explanation in the provision of Section 2(d) of the Central Excise Act laying down that if for the purpose of this clause, goods include any article, material or substance which is capable of being bought and sold for a consideration and in such case shall be deemed to be marketable - Held that:- Only difference in the facts of the present case and the decisions relied upon by the learned advocate is the addition of Explanation to Section 2(d) of the Central Excise Act, w.e.f 10.5.2008. However, I find that the Board’s Circular No.904/24/09-CX dated 28.10.2009 strongly relied upon by the lower authorities stands struck down by the Hon'ble Allahabad High Court in the case of Balrampur Chini Mills Ltd. vs. UOI reported as [2013 (1) TMI 525 - ALLAHABAD HIGH COURT]. Further, vide a recent decision, the Hon'ble Bombay High Court in the case of Hindalco Industries Ltd.: [2014 (12) TMI 657 - BOMBAY HIGH COURT] has set aside the Larger Bench decision of the Tribunal reported as [2014 (11) TMI 385 - CESTAT MUMBAI (LB)] and has observed that the amendment in Section 2(d) will not change the scenario inasmuch as the manufacture of waste, refuse, scrap, etc., cannot be considered to be manufactured items in terms of Section 2(f) of the Central Excise Act. - amendment in Section 2(d) has not changed the scenario. Accordingly, the law declared in the above decisions of the Hon'ble Supreme Court and the Hon'ble Bombay High Court would apply, read with the decisions of the Hon'ble Allahabad High Court. The impugned orders are accordingly set aside - Decided in favour of assessee.
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