TMI Blog2017 (6) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... e & Customs Government of India, The Commissioner of Central Excise Versus M/s. Mettur Thermal Power Station (A Unit of Tamil Nadu Generation & Distribution Corporation Ltd. (TANGEDCO) [2017 (1) TMI 222 - MADRAS HIGH COURT], where it was held that the fly ash produced during combustion of coal in the manufacture of electricity is a waste by-product. The same is not emerging out of any manufacturin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of electricity, fly ash is also generated. The dispute in the present case is the liability of the Appellants to pay the Central Excise Duty on such fly ash cleared by the Appellants. Proceedings were initiated against the Appellants to demand and recover Central Excise Duty on fly ash for the period February 2011 to February 2012. The case was adjudicated by the original authority who confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Duty on the fly ash emerging during the course of generation of electricity. The lower authorities held that the said fly ash is classifiable under Chapter 26 of the Central Excise Tariff and is liable to duty of 1% / 5% with the condition that no Cenvat Credit has been availed on input/input services under Cenvat Credit Rules, 2004. The lower authorities held that the Appellants are lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction of the goods and that leviability of duty is linked to its manufacture or production. Therefore, as propounded by the Supreme Court in a catena of decisions referred to above, the twin tests of manufacture and marketability should be satisfied in order to bring the goods within the ambit of excise duty and failure of even one of the test would render the product not liable for excise duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts have to be satisfied in order to bring a product within the ambit of excise duty and satisfaction of solitary test alone would not be sufficient to levy excise duty on the commodity. Therefore, mere marketability of the product alone would not be suffice to levy duty on the fly ash , there being no manufacturing process involved. 6. The dispute in the present case is squarely covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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