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TMI Blog2015 (8) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... that fly ash is excisable goods falling under chapter 26 and the same would attract duty @ 5% under Notification No.02/11-CE dt.1.3.11 (Serial nO.14) as credit in respect of various inputs service including GTA service has availed. It is on this basis that the demand of duty on the clearance of fly ash during the period March, 2011 to February, 2012 have been made. A show cause notice was issued to the appellant for demand of duty amounting to Rs. 2,02,057/- from them in respect of clearance of fly ash alongwith interest and also for imposition of penalty. The show cause notice was adjudicated by the Assistant Commissioner vide Order-in-Original dated 22.1.14 by which the above mentioned duty was confirmed against the appellant and penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excisable, that the same view has been taken by the Tribunal in the case of CCE, Nagpur vs. Chandrapur Super Thermal Power-2014 (7) TMI 29 CESTAT Mumbai, that the Tribunal in the case of Shaw Wallace Gelatines Ltd. vs.CCE, Indore-2011 (131) ELT 397 (Tri.-Del.) has 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, and that the same view has been taken by the Apex Court in the case of Union of India vs. Ahmedabad Electricity Co.Ltd.-2003 (158) ELT 3 (SC). She accordingly submitted that the impugned order is not correct, that the appellant have a strong prima facie in their favour and hence the requirement of pre-deposit of duty d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar view has been taken by the Tribunal in the case of Shaw Wallace Gelatines Ltd. 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. (supra). 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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