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TMI Blog1988 (5) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... nd different product having a distinctive name, character or use . They held that since the dross is sold and saleable, this test of marketability places it in the category of goods and since it is manufactured auring the production of aluminium sheets, it would fall under Item 68. 2. The learned counsel for M/s. Hindustan Aluminium submitted that this Tribunal had held in several judgments that dross and skimmings are not goods and, therefore, not excisable. 3. The learned counsel for the department, however, opposes the freedom from excisability of dross and skimmings. He argued that all the Tribunal s order of the past were based on the Bombay High Court judgment 1980 E.L.T. 146 re: Indian Aluminium. But it needs to be stated, he sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, labour or manipulation whereby the end-product is dross and skimmings. They are merely the scum thrown out in the process of manufacture of aluminium sheets. Therefore, it cannot be said that the dross and skimmings are transformation resulting in new and different articles with a distinctive name, character or use or that they ordinarily come to the market to be bought and sold and are known to the market . 5. At another place the court said that refuse or scum thrown off during the process of manufacture cannot by any stretch of the imagination be considered a by product, and merely because such refuse or scum may fetch some price in the market does not justify its being clothed with the dignity of being called a by-product, much le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat refuse, scum and dross are the result of fabrication and manipulation, and have acquired new name, character and use. A sale does not turn an object into a goods for the purpose of excise duty assessment. As observed by the Bombay High Court, any rubbish can be sold, and is sold. In fact, city sewage is known to be sold to people who process and produce manure etc. from it. We have read reports of dead bodies being sold for their skeletons. Animal bones are sold to bone meal manufacturers. There are many instances of this kind which are difficult to enlist entirely. The department are, therefore, not correct to say that the Indian Aluminium decision does not deal with whether aluminium dross and skimmings are goods for the purpose of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke no difference if the product is carbon dioxide. It rejected the argument that a sub-standard product may not be known as that product. Duty, it said, was on manufacture and not on sale, and the fact that the kiln gas was not actually sold would not make any difference. 10. Before 1975, argued the learned SDR, dross were not covered; from 1975, Item 68 was introduced into the tariff and this item is adequate to cover dross and skimmings. It has an explanation which would aid in this interpretation because it provides that goods excluded from an item in any manner shall be deemed to be goods not specified in that item. By an explanation under Item 27, waste and scraps are defined as waste and scrap of aluminium, fit only for the recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is and there is no question about it. But it shall not be assessed as a motor vehicle, enjoins the law. 14. All the exclusions are of good prime-quality products whose inclusion (but for the exclusion) everybody would have taken for granted without demur and without reservations. Not so with dross. A few may say it goes with the prime aluminium, or lead or copper; most others will resist it, and I with them. Dross is no aluminium; not even waste aluminium. You may wrench some metal out of them; for that matter, rag pickers lift rags and waste paper and cans from refuse heaps. It will not prove that the refuse bin will be classed as a cotton bale, or a paper (or pulp) roll. 15. The exclusion in Item 27 of dross and skimmings is not becau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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