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M/s Topworth Steels And Power Pvt. Ltd. Versus CCE, Raipur

2017 (12) TMI 1023 - CESTAT NEW DELHI

Waste - Liability of duty - fly ash emerging during the process of burning in the furnace - Held that: - this Tribunal in several cases has consistently held that fly ash is in the nature of process waste and no duty will be payable on such goods - identical issue decided in the case of M/s Jai Balaji Industries Ltd. Versus CCE & ST, Raipur [2017 (6) TMI 898 - CESTAT NEW DELHI], where it was held that the fly ash emerging during the course of generation of electricity cannot be considered as a m .....

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dross, skimming etc. are merely the refuse, scum or rubbish arising in the process of manufacture of aluminium sheets and, therefore, cannot be said the result of treatment, labour or manipulation whereby a new and different article emerges with a distinctive name, character or use - mill scale is not liable for levy of excise duty. - Clandestine removal - shortages of finished products - Held that: - Once the appellant has accounted the finished products manufactured in its record, it is i .....

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emand for purpose of quantification. - Excise Appeal No.51909 of 2016 - A/58466/2017-EX[DB] - Dated:- 20-12-2017 - Mr. (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Member (Technical) Ms. Shreya Dahia, Advocate for the appellant Sh. H. C. Saini, AR for the respondent ORDER Per : V. Padmanabhan The appeal is against the order in appeal No.BHO-EXCUS-002-APP-344-15-16 dated 16.02.2016 passed by the Commissioner, Customs & Central Excise, Raipur. 2. The appellant is engaged in the manu .....

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he course of burning of coal in the furnace as well mill scale which is generated in the course of manufacture of M.S. beams/ channels were being cleared from the factory without payment of duty. The departmental officer recorded the statement of Sh. Kundan Das Vaishnav, A.S. of the appellant in which he admitted the stock shortage and paid duty attributable to such shortage of finished products. After conclusion of investigation, departmental proceedings were initiated in which the duty payable .....

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ote that the total demand is comprised of three parts: (i) Duty payable on fly ash; (ii) Mill scale; and (iii) Shortages which are alleged to have been cleared clandestinely. 5. With reference to the fly ash emerging during the process of burning in the furnace, we note that this Tribunal in several cases has consistently held that fly ash is in the nature of process waste and no duty will be payable on such goods. An identical issue has come up before the Tribunal in the case of Jai Balaji Indu .....

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Cenvat Credit has been availed on input/ input services under Cenvat Credit Rules, 2004. The lower authorities held that the Appellants are liable to payment of duty on the consideration received on sale of such fly ash. We note that the fly ash emerging during the course of generation of electricity cannot be considered as a manufactured product liable to Central Excise duty. In this connection, the observation of the Hon ble Madras High Court in Mettur Thermal Power Station (supra) is relevan .....

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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. In the case on hand, it is clear from the averments of either party and is also not in dispute that fly ash is a by-product during the production of electricity and i .....

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n the schedule it cannot be termed as an excisable commodity, since it satisfies the test of marketability. The twin tests 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 squarel .....

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g during the process of manufacture. It has been submitted by the appellant that such mill scale accumulated in the factory over a long time were cleared without payment of duty since it is in the nature of only waste. We find that the similar issue has come up before the Hon ble Bombay High Court in the case of Hindalco Industries Limited Vs. Union of India - 2015 (315) ELT 10 (Bom.) in which the Hon ble High Court considered the dutiability of dross, skimming of various non-ferrous metal arisi .....

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