2005 (10) TMI 187 - AT - Central Excise

Summary

Issues Involved: Revenue appeal against under-valuation of industrial waste items - Classification as goods or waste.

Issue 1 - Under-Valuation Allegation:
The appellants were clearing Spent Benzene, Spent Toluene, Spent N. Butanol, and Spent Methanol, leading to proceedings by the department on grounds of under-valuation. The respondent argued that these items, being waste, are not considered goods under the law, even if sold at a low price. The Commissioner (Appeals) agreed, citing precedents and emphasizing that the mere ability of waste to fetch some amount does not make it excisable goods. The Revenue contended that since the items were sold, they should be classified as goods, despite no issue of classification being raised initially.

Issue 2 - Classification as Goods or Waste:
The learned Counsel compared the items to spent earth and referenced a Supreme Court case where the burden of proof on the Revenue to establish the items as goods was emphasized. The Tribunal observed that the Revenue did not dispute the items being industrial waste, and previous decisions had already favored the position that industrial waste is not excisable. The Revenue's failure to appeal against the earlier decision further weakened their argument. The Tribunal highlighted that the burden lies on the Revenue to prove that the items are manufactured and excisable, as per legal precedent regarding industrial waste like Spent Earth.

Conclusion:
After careful consideration, the Tribunal rejected the Revenue's appeal, emphasizing that the burden of proof regarding the classification of the items as goods was not met. The Tribunal cited legal precedents, including the case of CCE v. Markfed Vanaspati and Allied Industries, to support their decision that industrial waste, even if sold, does not automatically qualify as excisable goods. The appeal was deemed to lack merit, and the decision in favor of the appellants was upheld.