2003 (3) TMI 229 - AT - Central Excise

Summary

Issues: Excisability of coal ash

Analysis:
1. The issue involved in this case is the excisability of coal ash. Initially, the Assistant Commissioner classified coal ash under sub-heading No. 2621.00, resulting in a duty demand and a personal penalty. However, the Commissioner (Appeals) set aside this decision based on a Gujarat High Court ruling stating that burnt coal remains or half burnt coal do not qualify as excisable goods under sub-heading 26.21 of the Tariff Act. The court deemed the circulars and trade notices classifying coal ash as excisable to be arbitrary and illegal.

2. The Revenue argued in their appeal that coal ash should be classified as such under sub-heading No. 2621.00, as it is a residue from the coal used in a rotary kiln for manufacturing sponge iron. They contended that the Gujarat High Court's decision was not applicable to this case, as coal was used as an active input in the kiln, not as a primary fuel in a boiler. The Revenue also mentioned a circular by the Board and the fact that the Supreme Court had been approached regarding the Gujarat High Court's decision.

3. Upon hearing both sides, the Tribunal rejected the Revenue's argument, stating that coal ash cannot be classified under heading 2621.00. The Tribunal found no merit in the Revenue's attempt to distinguish the Gujarat High Court's decision, emphasizing that whether coal is burnt as fuel in a boiler or as an input in a kiln, the resulting coal ash is not excisable. The Tribunal highlighted that the coal ash being sought to be levied with excise duty does not qualify as excisable goods, as clarified by the Gujarat High Court's decision.

4. The Tribunal upheld the Commissioner (Appeals)' decision based on the Gujarat High Court's ruling, concluding that there was no error in the view taken. Consequently, the Revenue's appeal was rejected, and the classification of coal ash as excisable goods under sub-heading No. 2621.00 was not accepted.