2017 (4) TMI 424 - AT - Central Excise

Filter Cake emanated from the affluent plant - excisability / marketability - the contention of appellant being on two counts i.e. there was no intention to manufacture Filter Cake and the goods itself is found to be sludge by the Appellate Commissioner, the goods not meeting the twin test - Held that - the Explanation added to Section 2(d) of CEA, 1944 incorporated w.e.f. 10.05.2008 shall operate from that date without brining Revenue s case into its fold for levy prior to that date. Revenue thereby failed to discharge its burden of proof demonstrating that the Filter Cake came out as a product itself intended to be manufactured and traded in market under common parlance - goods therefore not excisable - appeal allowed - decided in favor of assessee.

Summary

Issues:
1. Whether Filter Cake emanated from the affluent plant is marketable and meets the twin test of law.
2. Whether the appellant's intention to manufacture Filter Cake affects its excisability.
3. Whether the Filter Cake being sold by the appellant is subject to excisability.
4. Interpretation of the term "capable of marketing" in relation to excisability.

Analysis:

1. The appellant argued that the Filter Cake from the affluent plant was not marketable and did not meet the twin test of law as established by the Apex Court. They contended that the emergence of the goods was waste and residue, not intended for manufacturing. The Appellate Commissioner confirmed that the Filter Cake was ETP sludge arising from the affluent plant, leading to the conclusion that the goods did not meet the necessary criteria for excisability, as per established legal precedents.

2. The Revenue, however, asserted that the appellant regularly sold the Filter Cake for manufacturing lesser grade paper boards, citing a decision of the Madras High Court. They argued that excisability applies when ultimate goods are manufactured from waste. The appellant's lack of intention to manufacture Filter Cake was a key point in determining the excisability of the goods.

3. The appellant's counsel highlighted the introduction of the term "capable of marketing" through an Explanation to Section 2(d) of the Central Excise Act in 2008. This addition to the law was crucial in assessing the marketability of goods for excisability purposes, further weakening the Revenue's argument.

4. After considering both sides and reviewing the records, the Tribunal found that the Filter Cake sold by the appellant, which originated from the affluent treatment plant without the intention for its manufacture, aligned with the decision of the Apex Court. The Tribunal clarified that the Explanation added to Section 2(d) of the Central Excise Act in 2008 operated prospectively without retrospective effect. Consequently, the Revenue failed to prove that the Filter Cake was a product intended for manufacturing and trading in the market, leading to the dismissal of their claim.

In conclusion, the Tribunal allowed both appeals based on the findings and legal interpretations presented during the proceedings.