TMI Blog2004 (4) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of Central Excise Duty. The show cause notice relied on Rule 3(b) of the Rules for Interpretation of the Schedule to the Central Excise Tariff Act which reads as follows :- "Mixtures, composite goods consisting of different material or made up of different components, and goods put up in sets, which cannot be classified by reference to (a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable." In view of this Rule 3(b) it was contended that the other waste materials which constitutes Ferro Manganese, Ferro Silicon, Ferro Chrome, besides sand etc., are required to be classified under sub-heading 7204.90 and hence demands were raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (76) E.L.T. 241 (S.C.)] and Tribunal rulings rendered in the case of Markfed Vanaspati Allied Inds. v. CCE, Chandigarh [2000 (116) E.L.T. 204], Hindustan Lever Ltd. v. CCE, [1985 (22) E.L.T. 232]. It was also submitted that the appellants had not suppressed facts and they held a bona fide belief that such rubbish and waste could not be considered a marketable commodity and to be considered as goods. There was no intention to evade duty and hence they relied on the judgment rendered by the Apex Court in the case of Padmini Products v. CCE [1989 (43) E.L.T. 195 (S.C.).] and Pushpam Pharma Co. v. CCE [1995 (78) E.L.T. 401 (S.C.)] and CCE, Patna v. Tata Iron Steel Co. Ltd. [2004 (165) E.L.T. 386 (S.C.)]. It is their further submission that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls and metal goods definitely not useful as such because of breakage, cutting up, wear or other reasons. As per the Note 8(a), the waste and scrap should be of the metals which could have a higher content of the metal. In the present case the percentage is hardly 2 to 5%. The Department ought to have produced evidence to show that the same can be treated as waste and scrap within the meaning of Note 8(a) of Sec. XV of the Tariff. There is no such evidence of marketability and commercial understanding that the waste which comprises 2 to 5% of non-Ferro Alloys should be considered as waste and scrap of Ferro Alloys for classification under Heading 7204.90. The Department has not discharged their burden to hold the item to be an excisable one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dross and skimming are marketable commodity as even rubbish can be sold and everything, however, which is sold is not necessarily a marketable commodity as known to commerce and which, it may be worthwhile to trade in. The issue involved in this case is governed by the past decisions of the Tribunal and also of this Court where the Tribunal and this Court held that the zinc dross and skimming arising as refuse during galvanisation process are not excisable goods. The Tribunal, in our opinion, has rightly relied upon the decision of this Court in Indian Aluminium Co. Ltd. (supra) and in view of the above decision of this Tribunal following this Courts opinion in Indian Aluminium Company Ltd. (supra), we disagree with the appellant's that zin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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