TMI Blog2015 (6) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... 04) 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 ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, these petitioners preferred appeals before CESTAT, which has also dismissed the appeals preferred by these petitioners, confirming the order passed by Commissioner (Appeals) and, therefore, these writ petitions have been preferred by these petitioners. 2. Learned counsel appearing for the petitioners submitted that the petitioners are invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, mainly for the reason that the order passed by the Commissioner (Appeals), refusing to condone the delay beyond 30 days, may be under Central Excise Act, 1944, but, whenever there is a perpetuated injustice or whenever there is miscarriage of justice, looking to the facts of the case, then the writ application can always be preferred invoking Article 226 of the Constitution of India and there is no bar upon the power, jurisdiction or authority of the High Court under the Constitution of India to entertain the writ petitions. 3. It is further submitted by the learned counsel for the petitioners that even if efficacious alternative remedy is available, then also to prevent the miscarriage of justice the writ jurisdiction can be invoked. Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the petitioners, even though it is saleable, marketable and capable to fetch some sale price. To substantiate his argument, learned counsel for the petitioners has relied upon a decision rendered by Hon'ble the Supreme Court in the case of Collector of Central Excise, Patna Vs. Tata Iron Steel Co. Ltd. as reported in (2004) 9 SCC 1, specially paragraphs 2, 11, 12, 14, 15, 16 17 etc. thereof. This judgment is absolutely upon Zn-dross . Learned counsel for the petitioners has also relied upon a judgment delivered by the Hon'ble Supreme Court in the case of Commissioner of Central Excise Vs. Indian Aluminium Co. Ltd. as reported in (2006) 8 SCC 314. Learned counsel for the petitioners has though relied upon the whole judgment, but, specially paragraphs 17, 18 and 19 etc. thereof. This is a judgment upon Aluminium-dross . On the basis of these two judgments, it is submitted that Zn-dross is not an excisable goods as per Section 2(d) nor the same is intended to be manufactured by these petitioners and the said product is not even covered by the definition 'manufacturing', as per Section 2(f), nor it is produced by these petitioners. Thus, Zn-dross is ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms has stated that such type of matters arising between period 2005 to 2008 should be kept in a 'Call book' because one matter is already pending before the Hon'ble Supreme Court. This aspect of the matter has not been properly considered by the Assistant Commissioner, Central Excise, Jamshedpur while passing the order in O-in-O and hence O-in-O passed in all these writ petitions deserves to be quashed and set aside. 8. Learned counsel appearing for the respondents submitted that looking to Section 3 of the Act, 1944 to be read with Section 2(d) and 2(f) and also looking to the percentage of Zinc in Zndross , the by-product is crossing the permissible limit and hence it is excisable goods under Section 2(d) and the rate of tax will be as per Entry 7902-0010. It has been stated in the order passed in O7 in-O that sample drawn of Zn-dross was sent to National Metallurgical Laboratory, Jamshedpur and the percentage of Zinc found out is more than permissible limit i.e 90-92%. In fact, in some of the cases, it is approximately 96% Zinc in so called Zndross . Thus, the goods in question is falling within Section 2(d) and tariff levied is as per entry 7902-0010. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough it is a by-product, the same is a manufacturing of a byproduct . It is commercially another item. It is marketable commodity and hence no illegality has been committed in imposing and levying excise duty on the goods in question. It is further submitted by the learned counsel for the respondents that in fact the factual aspects have already been crystallized in the O-in-O and the appeal against O-in-O has already been dismissed, because it was beyond the period of condonable delay and as CESTAT has also dismissed the appeal for facts there is a concurrent finding of facts. So far as law is concerned, as stated hereinabove, the percentage of Zinc is higher than 90-92% and therefore, it is excisable goods . Learned counsel appearing for the respondents has submitted that the judgment cited by the learned counsel for the petitioners are not useful to the petitioners mainly for the reason that the peculiar facts of the present case of more than 96% of Zinc content in a Zn-dross makes the present case different. Moreover, if this percentage of Zinc in Zn-dross is allowed by this Court and if this Court treats this goods as nonexcisable then tomorrow there may be a case befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t beyond that. These petitioners had preferred appeals beyond the limitation period and also beyond the condonable period and, hence on the basis of decision rendered by Hon'ble the Supreme Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and others as reported in (2008) 3 SCC 70, their appeals were dismissed because delay was not condoned by the Commissioner (Appeals). These orders passed in appeals preferred by these petitioners were further challenged before CESTAT, East Regional Bench, Kolkata under Section 35B of the Act, 1944. Obviously, based upon the same decision of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and others as reported in (2008) 3 SCC 70, when delay was not condonable by the Commissioner (Appeals), CESTAT dismissed the appeals preferred by these petitioners because no error was committed by the Commissioner (Appeals) while passing O-in-A and, therefore, these writ petitions have been preferred by these petitioners challenging the order passed by the CESTAT in Appeal, order passed by Commissioner (Appeals) in O-in-A and the order passed by Assistant Commissioner of Central Excise and Service Tax, Jam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order, we are of the view that in such extra-ordinary cases where an assessee can show extra ordinary circumstances explaining the delay and also gross injustice done by the adjudicating authority, the assessee may invoke the writ jurisdiction of this Court. Hence, in cases where the assessees have suffered gross injustice and they could not file appeals before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order-inoriginal on account of circumstances beyond their control, such assessees can invoke the powers of this Court under Article 226 of the Constitution but, of course, not as a matter of right. (Emphasis supplied) (v) Similarly , the Hon'ble Punjab and Haryana High Court in paragraph 18 of the judgment rendered in the case of JCB India Ltd. V. Union Of India, as reported in 2014 (301) ELT 209 P H, held as under:- 18. In view of what has been recorded hereinabove, the writ petition is allowed; the impugned assessment order dated 25.01.2006 (Annexure P-4), order dated 8-12-2008 (Annexure P-11) passed by the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account;] 3. Duties specified in [the Schedule and the Second Schedule to the Central Excise Tariff Act, 1985] to be levied. - (1) [There shall be levied and collected in such manner as may be prescribed,- (a) [a duty of excise to be called the Central Value Added Tax (CENVAT)] on all excisable goods [(excluding goods produced or manufactured in special economic zones)] which are produced or manufactured in India as, and at the rates, set forth in the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); (b) a special duty of excise, in addition to the duty of excise specified in clause (a) above, on excisable goods [(excluding goods produced or manufactured in special economic zones)] specified in the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) which are produced or manufactured in India, as, and at the rates, set forth in the said Second Schedule:] (Emphasis Supplied) In view of the aforesaid provisions of the Act, 1944 Zndross which is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a by-product. This by-product may be a desirable item or may be an undesirable item. If this by-product is commercially another item and if it is marketable item and if it is saleable and purchasable in the open market then the production of 'D', even though there was no intention on the part of manufacturer to produce goods D , is always excisable. In the facts of the present case also, Zn-dross is commercially another item produced as a by-product - may be compulsory by-product - may be undesirable by-product. Nonetheless if it is saleable and purchasable in the open market, it is marketable goods and hence this Zn-dross is excisable goods arising out of manufacturing process of galvanized tubes and hence looking to the provisions of Section 3 - a charging Section for Excise Duty to be read with Section 2(d) and 2(f) of the Central Excise of the Act, 1944. The rate of the duty is also prescribed under tariff entry no. 7902-0010. The said entry reads as under : Tariff Item Description of goods Unit Rate of duty # 7902 7902 00 7902 00 10 Zinc was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcisable goods and ultimately it will lead to an absurd situation that even a pure Zinc manufactured, which is having a purity 99.999999% of Zinc in a Zinc dross (which is almost a pure Zinc produce process) will also be a non-excisable goods. This is not permissible in the eye of law. For ready reference, paragraph 9 of the order passed in O.-in-O of Assistant Commissioner of Central Excise, Jamshedpur in in Writ Petition (T) No. 79 of 2015 reads as under:- With the introduction of eight digit tariff code in Central Excise Tariff (Amendment) Act, 2004 with effect from 28.02.2005 the Zinc Dross with minimum 90-92 % of Zinc contents free of skimming in the context of ISRI Code words have been classified specifically under Tariff Item No. 79020010 of the CETA, 1985 considering the percentage of zinc content in it and attracted Central Excise Duty @ 16 % Adv. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by-product is marketable and as it is capable of being sold and purchased and in the market and as they are commercially another item they are covered by definition of word excisable goods under Section 2(d) and, therefore, under Section 3 of the Central Excise Act, 1944 excise duty can be imposed and levied upon these manufacturing goods looking to tariff prescribed and in the facts of the present case is tariff entry No. 7902-0010. In the facts of the present case 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. (x) Learned counsel appearing for the petitioners has placed heavy reliance upon decisions rendered by Hon ble the Supreme Court in Collector of Central Excise, Patna Vs. Tata Iron Steel Co. Ltd. as reported in (2004) 9 SCC 1. This is a judgment for Zn-dross . This judgment is not helpful to the petitioners mainly for the reason that tariff entry No. 7902-0010 has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be kept in mind that up-to what percentage of Zinc should be allowed in the Zn-dross , which is a policy decision. Court is not sitting in appeal upon this policy decision. The contention that even if the Zinc content is more than 92% then also it remains nonexcisable goods, is not accepted by this Court . (xii) Learned counsel for the petitioners has also relied upon a circular issued by Central Board of Excise and Custom bearing no. 904 dated 28th October 2009 and submitted that as per this circular the Assistant Commissioner of Central Excise and Custom Jamshedpur ought not to have issued the show cause notice and he should have kept all these matters in Call book . This contention is also not accepted by this Court mainly for the reason that learned counsel for the petitioners has not pointed out that which matter is pending before the Hon'ble Supreme Court and what is the law point involved in the said matter. Whenever an issue is to be decided, whether any goods have been produced or manufactured and whether it is excisable goods, it depends upon facts of the case. As stated hereinabove, the Zinc content is more than 96% in a Zn-dross which is a byproduct o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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