1998 (3) TMI 271 - AT - Central Excise

Summary

Issues:
Appeal against order of Collector of Central Excise (Appeals) - Classification of 'lime sludge' - Marketability of the product - Excisability and dutiability of the material - Application of CEGAT orders - Consideration of lower authorities' submissions.

Analysis:
The appeal before the Appellate Tribunal CEGAT, New Delhi was filed by the department challenging the order of the Collector of Central Excise (Appeals), Pune dated 14-3-1991. Despite the fixed date of hearing and the absence of the respondents' advocate, the Tribunal proceeded with the case after perusing the records and hearing the learned Departmental Representative.

The issue revolved around the classification of 'lime sludge' declared by the respondents in a classification list, claiming a Nil rate of duty. The respondents argued that 'sludge' should not be classified as excisable due to lack of marketability, citing relevant case law and previous orders. The Assistant Collector classified the material as excisable under 3823.00, but the Collector (Appeals) accepted the respondents' appeal, leading to the department's petition.

The department contended that the Collector erred in applying certain CEGAT orders and not considering agreements and bills proving marketability. They relied on a Supreme Court decision emphasizing marketability as essential for excisability. However, the Tribunal noted that the respondents' submission regarding 'lime sludge' being a by-product of their manufacturing process of Acetylene Gas was similar to a previous case where Carbide Sludge was deemed industrial waste and not excisable goods.

The Tribunal highlighted that the emergence of 'lime sludge' was an unavoidable by-product of the manufacturing process, and the department failed to prove its treatment as a commodity in the normal course. Citing the previous Tribunal's order and lack of additional evidence from the department, the Tribunal dismissed the appeal, affirming the Collector's decision based on the marketability aspect. The judgment concluded with the dismissal of the appeal in open court based on the Tribunal's analysis and the lack of evidence supporting excisability of the material.