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2015 (10) TMI 1357 - CESTAT NEW DELHI

2015 (10) TMI 1357 - CESTAT NEW DELHI - 2015 (329) E.L.T. 580 (Tri. - Del.) - Duty demand - Marketability of goods - Whether the aluminium dross and skimming arising in course of manufacture of aluminium products during the period of dispute would attract Central Excise duty - Held that:- No such evidence of existence of market for aluminium dross and skimming, like prices of this item being quoted in commercial journals and news papers, existence of persons selling this product or e-commence we .....

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not excisable cannot be assailed. - There is one more reason why the impugned order is correct. In terms of Chapter Note 3 to Chapter 26 of the Tariff, heading 26.20 applies only to that ash and residue which are used in the industry for extraction of metal or as starting material for manufacture of metal compounds. Such ash and residues would, obviously, be marketable as there would be demand for the same from metal extraction and chemical industry. But in this regard, no evidence in form of ev .....

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rers of aluminium products chargeable to Central Excise duty under Chapter 76 of the Central Excise Tariff. In course of manufacture of aluminium products, aluminium dross and skimming arises which is covered by sub-heading 2620.00 of the Central Excise Tariff. The respondent were selling the aluminium dross and skimming without payment of duty. The Department was of the view that the aluminium dross and skimming being covered by heading 2620.00 of the Central Excise Tariff is excisable goods as .....

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₹ 1,07,57,673/- were confirmed against the respondent alongwith interest. However, no penalty was imposed. On appeal being filed to Commissioner (Appeals) against this order, the Commissioner (Appeals) vide order-in-appeal dated 18/1/06 following the Apex court decision in the case of Union of India vs. Indian Aluminium Company Ltd. reported in 1995 (77) E.L.T. 268 (S.C.) set aside the Additional Commissioner s order holding that the aluminium dross and skimming emerging in process of prod .....

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and skimming removed during the period from September 1972 to March 1973 and during that period the aluminium dross and skimming were classified under Tariff item 68 of the Central Excise Tariff pertaining to goods not elsewhere specified while during the period of dispute, there is a heading 2620.00 specifically covering the ash and residue (other than, from manufacture of iron and steel) containing metals , that, beside this, during period of dispute, there is Chapter Note 3 to Chapter 26 whi .....

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) s order is with regard to dross and skimming arising in course of melting of aluminium ingots, the dispute in the present case is in respect of dross and skimming which arise in course of manufacture of aluminium from alumina by electrolysis process and in the dross and skimming arising in the present case the metal content is much higher, that the dross and skimming arising in this case are marketable which is evident from the fact that the same were being regularly sold by the respondent, at .....

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le and, hence, not excisable, is not correct. He also pleaded that the records of the respondent during the period from June 2003 to March 2005 also indicated that the aluminium dross and skimming were being sold regularly at the prices varying from 20,000 per MT to 22,000 per MT which clearly indicates that the market for this product existed. 3. Shri Udit Jain, Advocate, the learned Counsel for the respondent, pleaded that the point of dispute in this case stands decided by the Apex court s ju .....

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terial or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable, that Larger Bench judgment of the Tribunal in the case of Hindalco Industries Ltd. vs. CCE, Belapur, Mumbai III reported in 2014 (308) E.L.T. 472 (Tri. LB) has held that aluminium dross and skimming arising as by-product in course of manufacture of aluminium products would be excisable goods w.e.f. 10/5/08 in view of explanation added to Section 2 (d) of Central Exci .....

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urt in the case of Balrampur Chini Mills Ltd. vs. Union of India reported in 2014 (300) E.L.T. 372 (All.), wherein Hon ble Allahabad High Court in respect of period w.e.f. 10/5/08 held that bagasse arising as an inevitable by-product in course of crushing of sugarcane in course of manufacture of sugar is not marketable even though it is regularly bought and sold, and that the ratio of this judgment of Hon ble Bombay High Court is squarely applicable to the facts of this case. Shri Jain pointed o .....

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nfirmity in the impugned order. 4. We have considered the submissions of both the sides and perused the records. 5. The only point of dispute in the present case is as to whether the aluminium dross and skimming arising in course of manufacture of aluminium products during the period of dispute would attract Central Excise duty. There is no dispute that heading 2620 covers Slag, ash and resident (other than from manufacture of iron and steel) containing mainly zinc, lead, copper, aluminium and s .....

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dross and skimming of non-ferrous metal in the Central Excise Tariff and the such dross and skimming was sought to be taxed under Tariff item 68 of the Central Excise Tariff, and during the period of dispute there was a specific heading 2620 covering the dross and skimming of Aluminium, just because a particular product is covered by a tariff entry, it would not imply that the same is excisable, as for treating the goods as excisable the same must be goods , that is, the same must be marketable .....

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