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TMI Blog2017 (3) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... l is poured into moulds to make components. In the melting furnace, the top layer of molten aluminium is exposed to the atmosphere and gets oxidized and a thin layer film is thus formed which is removal by manual skimming operation. The said refuse is called aluminium dross. The Revenue demanded duty on this aluminium dross which has been cleared by the appellant without payment of duty. Aggrieved from the said order, the appellant is before us. 3. The Ld. Counsel for the appellant submits that the appellant has not manufactured aluminium dross, therefore, no duty of excise is payable by the appellant on the said aluminium dross as per the decisions of Hon'ble High Court of Bombay in the case of Hindalco Industries Limited v. UOI 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot wish to abide by them would not mean that the Tribunal is justified is not following them. we find that the attempt made by the Tribunal to hold that what is marketable and satisfies the requirement stipulated in the Explanation necessarily means that they are liable for imposition of duty under Section 3 is directly contrary to the binding Judgments of the Hon'ble Supreme Court on the same issue. The attempt of the Tribunal in para 6.5 in proceeding to analyse that the process and concluding that nobody deliberately manufactures waste, dross and scrap is in direct conflict with the findings of the Honble Supreme Court. Waste and scrap emerge as a by-product in the course of manufacture of other products. The whole purpose of maki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither a by-product or waste or scrap or rubbish. Once there are twin tests, then, all these observations are of no assistance to the Revenue. The reliance placed by Mr. Sethna on a judgment in the case of this very asssessee rendered by the Allahabad High Court 2009 (243) ELT 481 (All.) is entirely misplaced. There the argument was the writ petition has been admitted and therefore, a interim order be passed so as to restrain the Department/Revenue from taking any coercive action against the Petitioner Hindalco Industries ltd. including seizure and clearance of aluminium dross and skimming etc. in terms of the impugned orders. All the observations made prima facie do not take note of the decisions of the Hon'ble Supreme Court. It only takes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; The Rule is therefore, made absolute in terms of prayer clause (a). No order as to costs. All circulars impugned in this writ petition and identical and brought to the notice of this court would not therefore, survive after the legal position has been set out as above. 7. We also find that again in the case of Bajaj Auto ltd. Vs. CCE & Cus. Aurangabad reported in 2015 (322) ELT 419 (SC). The issue came up before the Hon'ble Apex Court and the Hon'ble Apex Court observed as under: 4. After hearing the counsel for the parties, we are of the opinion that the CESTAT's later judgment in the appellants case itself, which is the decision dated 23.01.2008 rendered in Appeal No. E/3182/2001, etc., clinches the issue. The learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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