2015 (10) TMI 1357 - AT - Central Excise

Duty demand - Marketability of goods - Whether the aluminium dross and skimming arising in course of manufacture of aluminium products during the period of dispute would attract Central Excise duty - Held that - No such evidence of existence of market for aluminium dross and skimming, like prices of this item being quoted in commercial journals and news papers, existence of persons selling this product or e-commence websites for sale of Aluminium dross and skimming etc. has been produced. We also find Hon ble Bombay High Court in the case of Hindalco Industries Ltd. vs. CCE, Belapur, Mumbai III (2014 (11) TMI 385 - CESTAT MUMBAI (LB)) has reversed the finding of the Larger Bench judgment of the Tribunal in the same case that during the period w.e.f. 10/5/08 the aluminium dross and skimming were excisable. In view of this judgment also the finding of the Commissioner (Appeals) that the goods, in question, are not excisable cannot be assailed. - There is one more reason why the impugned order is correct. In terms of Chapter Note 3 to Chapter 26 of the Tariff, heading 26.20 applies only to that ash and residue which are used in the industry for extraction of metal or as starting material for manufacture of metal compounds. Such ash and residues would, obviously, be marketable as there would be demand for the same from metal extraction and chemical industry. But in this regard, no evidence in form of evidence of end use of the dross for extraction of Aluminium or for manufacture of Aluminium compound has been produced. Therefore the dross and residues, in question, is not covered by 2620. - Decided against Revenue.

Summary

Issues:
1. Whether the aluminium dross and skimming arising during the manufacture of aluminium products are excisable goods chargeable to Central Excise duty.
2. Whether the aluminium dross and skimming are marketable and hence excisable.
3. Applicability of Apex court judgment in the case of Union of India vs. Indian Aluminium Co. Ltd. to the present case.
4. Interpretation of Chapter Note 3 to Chapter 26 of the Central Excise Tariff regarding the application of heading 26.20 to ash and residue used in the industry for extraction of metal or manufacture of metal compounds.

Analysis:

1. The respondent, a manufacturer of aluminium products, faced three show cause notices for selling aluminium dross and skimming without duty payment. The Department argued that the dross and skimming, falling under sub-heading 2620.00 of the Central Excise Tariff, were excisable goods. The Additional Commissioner confirmed the demands, but the Commissioner (Appeals) set aside the order based on the Apex court decision in Union of India vs. Indian Aluminium Company Ltd., stating that the dross and skimming were not marketable goods.

2. The Revenue appealed, contending that the dross and skimming were marketable as evidenced by regular sales at prices close to the finished product. The Revenue argued that an intention to manufacture the dross and skimming could be presumed, citing case law and pricing data. The respondent's counsel relied on the Apex court judgment and amendments to the Central Excise Act, emphasizing that the dross and skimming were not marketable goods.

3. The Tribunal considered the dispute's core issue: whether the aluminium dross and skimming were excisable. The Tribunal referenced the Apex court's ruling that such items were not marketable goods, applying this precedent to the present case. The Tribunal highlighted the need for marketability for goods to be excisable, emphasizing the absence of evidence of a market for the dross and skimming.

4. Additionally, the Tribunal analyzed Chapter Note 3 to Chapter 26, noting that heading 26.20 applied to ash and residue used in metal extraction or manufacturing metal compounds, which would be marketable. However, no evidence of end-use for extraction or manufacturing of aluminium compounds was presented, leading to the conclusion that the dross and residues in question were not covered by heading 2620.

In conclusion, the Tribunal dismissed the Revenue's appeal, affirming that the aluminium dross and skimming were not excisable goods due to lack of marketability and evidence of specific end-use as required by the Central Excise Tariff.