TMI Blog2023 (6) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... - Excise Appeal No. 87066 of 2013 - FINAL ORDER NO. A/85850/2023 - Dated:- 21-4-2023 - HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) And HON BLE DR. SUVENDU KUMAR PATI , MEMBER ( JUDICIAL ) Shri Sachin Chitnis , Advocate for the Appellant Shri P. K. Acharya , Superintendent , Authorised Representative for the Respondent ORDER PER : BENCH This appeal is directed against Order-in-Appeal no. BR/(117)/TH-I/2013 dated 13.02.2013. By the Impugned order Commissioner (Appeals) has rejected the appeal filed by the appellant against Order-in-Original No. BR/117/Th-I/2013 dated 13.02.2013 holding as follows: (i) I confirm the demand of Rs. 23,38,602/-{( Rupees Twenty three Lakhs Thirty Eight Thousand Six Hundred Two Only) (Basic Rs. 2276088 + Ed Cess Rs. 45522 +H. S. Edu. Rs. 16992)} and order recovery of the same from M/s JSW Ltd. under proviso to sub section (1) of section 11A., (ii) I order for recovery of interest from them at appropriate rate on the confirmed duty amount of Rs. 23,38,602/- (Rupees Twenty Three Lakhs Thirty Eight Thousand Six Hundred Two only) under Section 11AB of the Central Excise Act, 1944. (iii) I impose a penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce this appeal. 3.1 We have heard Shri. Sachin Chitnis, Advocate for the Appellant Shri P. K. Acharya, Superintendent, Authorized Representative for the Revenue. 3.2 Arguing for the appellant Learned Counsel submits that: Mill Scale is inevitable waste/scrap that arisen during the course of manufacture offinal product. They have not setup any unit for intentionally manufacturing or selling or clearing these goods. It has been settled under by various decisions as follows: Tata Iron Steel Co. Ltd.-2004(165)ELT 386 (SC) Indian Aluminium Co. Ltd.- 1995 (77) ELT 268 (SC) This waste even if cleared against the commercial transaction should not be subjected to Excise duty. Commissioner (Appeals) while deciding the issue relied on CBEC Board Circular No. 904/24/2009-Cx, dated 28.10.2009, which has been withdrawn by CBIC Circular No. 1027/15/2016-Cx. dated 25.04.2016. 3.3 Learned Authorised Representative reiterates the findings recorded in the impugned order and submits that issue needs to be considered in light of following decisions: M/s. BHEL Vs. Commissioner of Central Excise, Trichyreported in 1999 (113) E.L.T. 606 (Tribunal). Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cifically covered above. Chapter Sub Heading No. 2619.00 of the Central Excise Tariff Act, 1985 specifically states and covers the Slag, Dross (other than Granulated Slag), Scalings and other Waste that arises during or from the manufacture of Iron or Steel. As per HSN Note to Chapter Sub Heading No. 2619.00 amongst others, Scalings are chips of iron oxide which result from the forging, hot rolling etc. of iron or steel. The heading also includes dust from blast furnaces and other kinds of waste resulting from the manufacture of iron and steel . Therefore, there is no dispute that these are specifically covered under the said heading and are chargeable to Central Excise duty. Mill Scale is scaling and are therefore, specifically covered under Chapter Sub Heading No. 2619.00 of the Central Excise Tariff Act, 1985 mentioned above. Scaling means Climbing , Scrabbling , Scrambling , Clambering . Mounting , Surmounting . Topping etc. Hon'ble CESTAT in the case of B.H.E.L. vs Collector of Central Excise, Trichy reported in 1999 (113) ELT 606 (Tri-Del) held that: we find that this mill scale is nothing but a thick layer of oxide formed due to high tempera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich they had taken Cenvat credit. The scaling ( Mill Scale ) aroused while working on these different raw materials in order to manufacture the finished goods. Therefore, these activities carried out by the appellant are specifically covered under the definition of manufacture that includes any process, incidental or ancillary to the completion of a manufactured product. They are liable to pay the Central Excise duty as confirmed by the respondents under Section 11A of the Central Excise Act, 1944. (8) Section 2(d) of the Central Excise Act, 1944 defines excisable goods as (d) excisable goods means goods specified in [[the First Schedule and the Second Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986)] as being subject to a duty of excise and includes salt; [Explanation. For the purposes of this clause, goods includes any article, material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable . (Emphasis Supplied). The explanation was inserted by amendment in the Budget, 2008 / Finance Act, 2008. As per the amended definition of excisable goods, duty becomes payable on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted goods, then in terms of Rule 6 of Cenvat Credit Rules, 2004, the assessee is required to reverse the proportionate credit or pay 5% amount . 4.3 The issue involved in the matter i.e. Whether duty can be demanded on the manufacturing waste arising during the course of manufacture even if the same is cleared for certain consideration is no longer res-integra and have been considered by this Tribunal time again. Vide Final Order No. A/86194-86197/2022 dated 09.12.2022. Tribunal has observed as follows: Learned Counsel for appellant submits that the issue of whether 'aluminium dross and skimming' arising in the course of manufacture is excisable after 10th May 2008 had come up before a Larger Bench of the Tribunal and taxability decided therein was overruled by the Hon'ble High Court of Bombay in Hindalco Industries Ltd v. Union of India [2015 (315) ELT 10 (Bom.)] = 2014-TIOL-2266- HC-MUMCX. 3. We have heard Learned Authorised Representative who has reiterated the Impugned order. 4. It is seen from the decision of the Hon'ble High Court of Bombay in re Hindalco Industries Ltd that dutiability of the impugned goods, which had been held by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a reference to these items in the Tariff Entry or the Tariff Schedule that would change the colour of the controversy. That would enable the Tribunal to then hold that the earlier Judgments and in the case of this very Assessee are no longer good law. However, we do not see how the decision in the case of Grasim Industries Ltd. (supra) and particularly the above reproduced paragraphs could have been brushed aside by the Tribunal. The Hon'ble Supreme Court listed the twin tests and which have to be satisfied before the goods can be said to be excisable to tax or Central Excise duty. It is in these circumstances that the attempt of the Tribunal and which is supported before us by Mr.Sethna cannot be upheld. Each of these observations and from para 6.5 onwards run counter to the Judgments of the Hon'ble Supreme Court. 23. In para 6.9, the Tribunal takes assistance of a Supreme Court Judgment and concludes that the ratio of any decision can be applied only if the facts are identical. True it is that the Hon'ble Supreme Court holds this way, however, what are those facts and emerging from the record of this case which would enable it to take a different view have n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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