TMI Blog2019 (1) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... on of manufacture. In terms of Section 2 (f) of Central Excise Act Hon’ble High Court of Madras in the case of Central Board of Excise and Customs, vs. Mettur Power Thermal Station [2017 (1) TMI 222 - MADRAS HIGH COURT] has held that the fly-ash since is formed during the production of electricity by burning pulverized coal fly-ash cannot be said to be manufacture merely because fly-ash was specific or residuary entry in schedule, it cannot be termed as excisable commodity just because, it satisfies the test of marketability. The statute levy excise duty on the goods which are manufactured and have marketability. Fly-ash in the given circumstances is qualifying only one of the conditions i.e. of marketability and is not qualifying th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved, an appeal was preferred. Commissioner (Appeals) vide the Order under challenge i.e. the Order-in-Appeal No.77 dated 18.05.2017 has upheld the said decision. Being aggrieved, the appellant is before this Tribunal. 2. It is submitted on behalf of the appellant that the fly-ash is generated out of the burnt out process and accordingly is a mere waste. It therefore do not quality the definition of manufactured in terms of Section 2 (f) of the Central Excise Act, 1944. As such the excise duty as has been confirmed on the said fly ash is not at all sustainable. The original adjudicating authority has acknowledged that the appellants are actually manufacturing lignite for the production of electricity and the fly-ash is generated out of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be demanded on basis of 8% of price of exempted goods under Rule 57CC of erstwhile Central Excise Rules, 1944 - Rule 57D ibid - Rule 6 of Cenvat Credit Rules, 2004. 6. In the case of M/s. Sterlite Industries v. Commissioner of Central Excise and also in the case of M/s. Hindustan Zinc Ltd. v. Commissioner of Central Excise , the Tribunal had held that where any waste products are obtained which are used for further manufacture of exempted goods, the requirement of reversal of Cenvat credit under Rule 57CC would not arise. 7. In terms of Section 2 (f) of Central Excise Act Hon ble High Court of Madras in the case of Central Board of Excise and Customs, vs. Mettur Power Thermal Station 2017 (349) ELT 708 (Madras) has he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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