2008 (4) TMI 170 - AT - Central Excise

Commissioner (Appeals) held that the copper sludge/mud arising during the manufacture of zinc sulphate are not excisable items - Revenue even in their appeal memo has not referred to any evidence to show that the goods under dispute are regularly coming to the market for being bought and sold - merely because there are sales by itself is not sufficient to hold that they are marketable and hence excisable - appellate authority has correctly applied the law revenue appeal dismissed

Summary

Issues:
Interpretation of marketability of goods arising as waste in the course of manufacturing finished goods for excise duty purposes.

Analysis:
The case involved appeals filed by the Revenue concerning the excisability of copper sludge and copper mud arising during the manufacture of zinc sulphate. The Commissioner (Appeals) had held that these items were not excisable. The Revenue argued that the copper sludge contained around 20% copper, while the copper mud contained 5-7% copper. The Commissioner (Appeals) noted that the disputed goods were sold in the market as waste arising from the manufacturing process of zinc sulphate. The key issue was whether the goods were marketable and thus subject to excise duty.

The Commissioner (Appeals) referred to the Supreme Court's decisions in the cases of Tata Iron and Steel Company Ltd. and CCE, Meerut v. Titawi Sugar Complex to determine the concept of marketability. It was highlighted that mere selling of a commodity does not necessarily make it marketable. Marketability implies that the commodity is known in commerce and is worthwhile for trade. The onus was on the department to prove that the disputed goods were marketable commodities. The Commissioner (Appeals) found that the Revenue failed to provide evidence demonstrating the marketability of the goods, as required by the Supreme Court decisions cited. Therefore, the goods could not be charged with duty.

The Appellate Tribunal agreed with the Commissioner (Appeals) and rejected all the appeals filed by the Revenue. It was emphasized that the mere fact that the goods were sold in the market did not automatically classify them as marketable for excise duty purposes. The Tribunal found that the appellate authority correctly applied the law, and the Revenue did not present any evidence showing the regular market presence of the disputed goods. The decision was in line with previous rulings, and no flaws were identified in the Commissioner's reasoning. Consequently, the appeals were dismissed.