2018 (12) TMI 1030 - AT - Central Excise

Excisability/marketibility - cinders - Section 3 of the Central Excise Act - Held that - This Bench after considering the rival contentions has upheld the Order of the Supreme Court in the case of M/s. Ahmedabad Electricity Co. Ltd. 2003 (10) TMI 47 - SUPREME COURT OF INDIA settling the issue that cinder is not an excisable product - there is no change with regard to facts nor is there any change in law between the period on hand and the above ruling and hence the above ruling squarely applies to the case on hand - appeal allowed - decided in favor of appellant.

Summary

Issues:
Demand of duty on clearance of "Cinders" for the period May 2008 to August 2010.

Analysis:
The appeal was filed against the Order-in-Appeal No. 69/2012 dated 29.03.2012 passed by the Commissioner of Central Excise (Appeals), Trichy regarding the demand of duty on clearance of cinders. The dispute arose as the appellant had cleared cinders without payment of duty based on a Board Circular and a Supreme Court judgment. A Show Cause Notice was issued proposing a demand of Central Excise duty, interest, and penalty. The Deputy Commissioner confirmed the proposals, which were upheld by the first appellate authority. The appellant appealed to the tribunal, challenging the demand of duty on cinders.

During the hearing, the appellant's advocate argued that the Supreme Court judgment discussed the dutiability of cinders but did not address their marketability. The advocate also mentioned a previous ruling by the same Bench of the Tribunal in favor of the appellant. On the other hand, the Revenue representative supported the findings of the lower authorities.

After considering the arguments and reviewing the previous ruling, the tribunal found that the Supreme Court's judgment had settled the issue that cinder is not an excisable product. The tribunal referred to the Board's circular and the amendment to Section 2(d) of the Central Excise Act, emphasizing that cinder is considered a non-excisable commodity. The tribunal also highlighted a Bombay High Court case regarding similar issues and the binding effect of Supreme Court judgments on such matters.

Based on the analysis, the tribunal concluded that the impugned order upholding the view that cinder is a dutiable product and exigible to Central Excise duty could not be sustained. Therefore, the tribunal set aside the impugned order and allowed the appeal with consequential benefits as per the law.

In summary, the tribunal ruled in favor of the appellant, stating that cinder is not an excisable product and is considered a non-excisable commodity based on relevant legal precedents and circulars. The tribunal set aside the demand of duty on the clearance of cinders and allowed the appeal with consequential benefits as per the law.