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2015 (8) TMI 833 - CESTAT NEW DELHI

2015 (8) TMI 833 - CESTAT NEW DELHI - TMI - Duty 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 .....

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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 .....

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iron from iron ore. In the course of manufacture of sponge iron while burning coal in the boiler, fly ash arises. For dispose of fly ash, the appellant offered it to any person who was ready to lift the same. The department was of the view 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 .....

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al amount was imposed on them. The Assistant Commissioner held that fly ash obtained while burning coal in the boiler is covered under chapter 26 and since Cenvat credit has been taken in respect of input services, the same would attract duty @ 5% Adv. under Notification No.02/11-CE. The above order of the Assistant Commissioner was upheld by the Commissioner (Appeals) vide Order-in-Appeal dt.30.4.14. Against this order of the Commissioner (Appeals), this appeal has been filed alongwith stay app .....

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der to get rid of fly ash, had offered it free to any person who was ready to lift the same, that the burden is on the department to provide the evidence to proves that the fly ash is marketable, that no evidence has been produced by the department in support its claim that fly ash is marketable, that the Tribunal in the case of ITC Ltd. vs. CCE, Hyderabad-III-2014 (12) TMI 449 CESTAT- Bangalore has held that fly ash arising in the course of manufacture of paper/paper board is not excisable, tha .....

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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 demand, interest and penalty may be waived for hearing of their appeal and recovery thereof may be stayed. 4. Shri M.S.Negi, learned DR opposed the stay application by reiterating the findings of the Commissioner (Appeals) and pleaded that fly ash, in question, obtained .....

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of pre-deposit. 5. We have considered the submissions from both sides and perused the records. The point of dispute is whether fly ash obtained by burning of coal in the boiler the course of manufacture of sponge iron is dutiable. There is no dispute 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 .....

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