2016 (12) TMI 323 - AT - Central Excise

Levy of duty - fly ash bricks falling under Central Excise Tariff Heading 68159910 - Held that - We note that admittedly the bricks cleared by the appellant contained more than 48% of fly ash by weight. The appellants in various communication to the jurisdictional officer categorically admitted that in general and common language they call ESP dust as fly ash . The percentage of content of such fly ash which is manufactured and cleared by them has also been provided by the appellants only. There various sales invoice of the impugned goods clearly mention them as fly ash bricks . Admittedly in the common trade parlance the product cleared by the appellant are nothing but fly ash bricks. Now to consider the appellant s claim regarding such fly ash not being generated by burning the fuel, we note that coal is being used by the appellant in the manufacture of sponge iron. During the process of manufacture, ash particles are generated which were collected in electrostatic precipitator and later used in the manufacture of bricks. These facts have not been disputed. As such we find no reason to interfere with the findings of the original authority regarding the excise duty liability on fly ash bricks. Cross examination of the chemical examiner - Held that - no report of chemical examiner has been relied upon by the original authority. In fact it is recorded that the chemical examiner informed that it is not possible to ascertain percentage content of fly ash from the fly ash bricks. As such we find the submission of the appellant on this account is without merit. The original authority also denied the concessional duty rate to the fly ash on the ground that the condition mentioned in the Notification 5/2009-CE has not been fulfilled by the appellants. We note that the records to be maintained and the returns to be filed in this regard has not been complied with by the appellant and hence at this stage we find no reason to interfere with the findings of the original authority. Extended period of limitation - Held that - inspite of engaged in the manufacture of fly ash bricks and marketing the same in the said name, the appellants did not file any return for the said product. Their submission that the extended period is not applicable in the present case is not tenable. Appeal rejected - duty levied - decided against assessee.

Summary

Issues: Central Excise duty liability on fly ash bricks manufactured and cleared by the appellant, applicability of concessional duty rate, compliance with Notification 5/2009-CE conditions, demand of extended period for filing returns.

Central Excise duty liability on fly ash bricks: The appellant, engaged in manufacturing sponge iron, was found to have manufactured and cleared fly ash bricks liable to Central Excise duty. The appellant argued that they only produced bricks from electrostatic precipitator dust, not fly ash. However, it was established that the bricks contained more than 48% fly ash by weight, and the appellant referred to them as "fly ash bricks" in various communications and sales invoices. The Tribunal noted that during the sponge iron manufacturing process, ash particles were collected in electrostatic precipitator and used in making bricks. The appellant's plea to cross-examine the Chemical Examiner was dismissed as no report from the examiner was relied upon by the original authority. The Tribunal upheld the original authority's decision on excise duty liability, stating that the appellant's claim of not generating fly ash was unsubstantiated.

Applicability of concessional duty rate: The original authority denied the concessional duty rate for fly ash, citing non-compliance with Notification 5/2009-CE conditions. The Tribunal found that the appellant failed to maintain records and file returns as required, leading to the denial of the concessional rate. It was concluded that the original authority's decision was justified as the appellant did not fulfill the conditions for the concessional rate.

Demand of extended period for filing returns: Despite marketing the product as "fly ash bricks," the appellant did not file returns for the said product. The appellant's argument that the extended period was not applicable was rejected by the Tribunal. It was noted that the appellant's use of the term "fly ash bricks" in marketing was not disputed, and the claim that it was merely a trade parlance term was deemed invalid. The Tribunal upheld the original authority's decision, stating that the reasons provided in the order were legally sustainable, and rejected the appeal along with the Revenue's cross objection.

This judgment addressed the issues of Central Excise duty liability on fly ash bricks, the applicability of concessional duty rate, compliance with Notification 5/2009-CE conditions, and the demand for an extended period for filing returns. The Tribunal upheld the original authority's decisions on all counts, emphasizing the appellant's acknowledgment of producing and marketing fly ash bricks, the lack of fulfillment of concessional rate conditions, and the necessity for compliance with filing requirements despite the appellant's arguments to the contrary.