2019 (8) TMI 1310 - AT - Central Excise

Excisability/marketibility - aluminium dross/skimming - by-product/residual product - HELD THAT - The issue is no longer re-integra as decided by the larger Bench of the Tribunal in their own case HINDALCO INDUSTRIES LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, BELAPUR, MUMBAI III NAGPUR 2014 (11) TMI 385 - CESTAT MUMBAI (LB) decided the issue holding that aluminium dross and skimming arising during the process of manufacture of aluminium/non-ferrous metal are manufactured goods and are deemed to be marketable. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Whether aluminium dross and skimming emerging as residual products during the manufacture of aluminium products are excisable goods subject to duty.
2. Whether interest and penalty are recoverable when the duty itself is not deemed recoverable.

Analysis:

Issue 1:
The appellants, engaged in manufacturing aluminium products, were issued show cause notices contending that aluminium dross and skimming, generated as residual products during the manufacturing process, are excisable goods. The Orders-in-Original confirmed the duty and penalties imposed, which were upheld by the Commissioner(Appeals). The appellants argued that the issue had been settled in their favor by a larger Bench of the Tribunal and a High Court decision, supported by a subsequent clarification from the department through Circular No.1027/15/2016-CX. They cited previous cases where the Tribunal ruled in their favor. The Tribunal, after considering the arguments and records, found that the issue was no longer res integra. Referring to previous judgments and the circular, the Tribunal concluded that aluminium dross, being a waste product during manufacturing, cannot be subjected to excise duty. Therefore, the impugned orders were set aside, and the appeals were allowed with consequential relief.

Issue 2:
The question of whether interest and penalty are recoverable when the duty itself is not recoverable was raised during the proceedings. The appellants contended that since the duty was deemed not recoverable, interest and penalty should also not be recoverable. The Tribunal, after determining that the duty was not applicable to aluminium dross and skimming, allowed the appeals with consequential relief. This decision implies that interest and penalty, being associated with the duty, would also not be recoverable in this case.

In conclusion, the judgment by the Appellate Tribunal CESTAT KOLKATA clarified that aluminium dross and skimming arising during the manufacture of aluminium products are not excisable goods subject to duty. The decision also implied that interest and penalty associated with the duty were not recoverable in this scenario.