TMI Blog2005 (4) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... and 'marketable' product and classified the same under sub-heading 2621.00 of the CETA Schedule. Accordingly, show-cause notices were issued for recovering duty from the appellants on red mud cleared during various periods. Demands of duty for the period 6/2000 to 3/2001, 5/2001 to 12/2001 and 1/2002 to 6/2002, to the total extent of Rs. 1,05,581/-, were confirmed by the original authority. Penalties were also imposed on the assessee by that authority. The first appellate authority sustained the demand of duty on the assessee but set aside the penalties. Appeal No. E/553/2004 is against this order of the Commissioner (Appeals). In a separate order, ld. Commissioner (Appeals) upheld a demand of duty of Rs. 86,507/- against the assessee for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... skimming which emerged during galvanisation of steel sheets, were only refuse and were not marketable and hence not excisable. Ld. Counsel relied on the judgment of the Apex Court, particularly, to establish that red mud could not be held to be marketable on account of its sale and that it was not a marketable commodity known to commerce. 3. Ld. SDR submitted that, even according to the process given by the appellants, red mud could be considered to have resulted from a process of manufacture. Admittedly, it was sold to cement manufacturers who used it as input for cement. Thus, according to ld. SDR, red mud had its own market. The fact that it did not fetch appreciable value was not relevant to the question whether it was marketable or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied this commodity under Heading 26.21 (S.H 2621.00) which reads :- "Other slag and ash, including seaweed ash (kelp)" But as held by the Apex Court time and again vide, for instance, CCE v. Markfed Vanaspati Allied Industries [2003 (153) E.L.T. 491 (S.C.)] any goods does not become excisable merely because it falls under a tariff entry. It must be a "manufactured" product known to the trade as a marketable commodity. The test of manufacture was not satisfied in respect of red mud. Hence, in our view, it is not necessary to examine the question whether red mud was marketable or not. The Tribunal's Larger Bench decision in the case of Markfed Vanaspati Allied Industries (supra) appears to be supportive of the appellants' case. In tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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