TMI Blog2018 (12) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... - Final Order No. 43102/2018 - Dated:- 3-12-2018 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Ms. S. Sridevi, Advocate for the Appellant Shri. K. Veerabhadra Reddy, ADC (AR) for the Respondent ORDER Per P. Dinesha : The assessee has filed this appeal against the Order-in-Appeal No. 69/2012 dated 29.03.2012 passed by the Commissioner of Central Excise (Appeals), Trichy and the dispute pertains to the demand of duty on clearance of Cinders for the period May 2008 to August 2010. 2.1 Brief facts are that the appellants are manufacturers of Refractory Bricks, Fireclay Bricks, Mortar, Castables and Cinders falling under Chapter 69022020, 69029010, 38180000, 69039040 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process of law, the Deputy Commissioner of Central Excise vide Order-in-Original dated 09.06.2011 confirmed the proposals made in the Show Cause Notice where after on appeal before the first appellate authority, the same came to be upheld vide impugned Order-in-Appeal No. 69/2012 dated 29.03.2012. Aggrieved by the same, the assessee has come in appeal before this forum. 3. Today when the matter came up for hearing, Ld. Advocate Ms. S. Sridevi appeared on behalf of the assessee-appellant while Ld. AC (AR) Shri. K. Veerabhadra Reddy appeared on behalf of the Revenue-respondent. 4.1 During the course of hearing, Ld. Advocate for the assessee submitted that the Hon ble Supreme Court in the above said judgement has elaborately discussed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the issue that cinder is not an excisable product. We find that the Board had accepted the said judgement in their circular dt. 18.11.2005 which had inter alia clarified as under: 3. In view of the Apex Court decision against the Department s circular, the instructions contained in the Circular No.386/19/98-CX., dated 7th April, 1988 would no longer be valid in their entirety. The said circular may, therefore be treated as withdrawn. Pending disputes, if any, may be decided accordingly. 5.2 Once the earlier circular dt. 07.04.1998 has been withdrawn in its entirety, it stands to reason that the Board has withdrawn from its earlier decision that cinder is an excisable commodity. 5.3 The import of the said Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28.10.2009 which gave clarifications on excisability of products termed as waste or residue or refuse arising during the course of manufacture. In the said circular Board referred to the amendment to Section 2(d) and clarified that such residue or refuse which arise during the course of manufacture and are capable of being sold for consideration would be excisable and chargeable to payment of Excise Duty. 5.6 It is however pertinent to note that the Hon ble Bombay High Court in the case of Hindalco Industries Ltd. Vs UOI relying upon the judgment of the Hon ble Supreme Court in the case of Grasim Industries Ltd. Vs UOI - 2011 (273) E.L.T. 10 (S.C.), held that the order of the Tribunal holding that dross and skimming of Aluminium, Zin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpt 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 Hon ble Supreme Court. Waste and scrap emerge as a by-product in the course of manufacture of other products. The whole purpose of making these observations is to justify the conclusion that because there is a reference to these items in the Tariff Entry o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
