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TMI Blog1989 (7) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the ld. Collector of Customs Central Excise, Calcutta vide his Order-in-Appeal No. 178/BR/85 dated 15-4-1985. The said order has given rise to the Appeal No. E/364/89-C. 3. In Appeal No. E/1820/85-C, Jurisdictional Assistant Collector classified carbide sludge as excisable goods falling under T.I.68 against which the assessee, M/s. Bansal Industrial Gases, went in appeal and the Id. Collector set aside the order. Aggrieved by the said Order No. 178/BR/85 dated 15-4-1985, the Revenue has come up in appeal. 4. We heard Sh. J.S. Agarwal, ld. Advocate for Asiatic Oxygen Ltd., while the appellants, M/s. Bansal Industrial Gases, sent written submissions and submitted that the appeal be decided on merits in their absence. We heard Sh. S. Chakravorty, ld. JDR, for the Revenue in all the three appeals. 5. Sh. J.S. Agarwal, ld. Advocate submitted that the issue has been covered against Revenue by an order of this Tribunal in the case of Collector of Central Excise, Gunter v. Andhra Oxygen (P) Ltd. reported in 1987 (30) E.L.T. 967 (Trib.). 6. As against this, the ld. D.R. submitted that the issue has not been finally decided and it is open to the Revenue to prove by credible ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own to the market . (iii) The above two judgments were followed by Hon ble Bombay High Court in Indian Aluminium Co. Ltd. v. A.K. Bandopadhyaya and Others [1980 (6) E.L.T. 146 (Bom.) where it has been held as under : Dross and skimmings are merely the refuse, scum or rubbish thrown out in the process of manufacture of aluminium sheets and cannot be said the result of treatment, labour or manipulation whereby a new and different article emerges with a distinctive name, character or use which can ordinarily come to the market to be bought and sold. Merely because such refuse or scum may fetch some price in the market does not justify it being called a by-product, much less an end product or a finished product. (iv) Union Carbide India Ltd. v. UOI (1986 (24) E.L.T. 169 (S.C.) wherein it has been held as under : To become goods article must be something which can ordinarily come to the market to be bought and sold. Articles in crude or elementary form not dutiable as they are merely intermediate products and not goods (aluminium cans or torch bodies). (v) Modi Rubber Ltd. v. UOI [1987 (29) E.L.T. 502 (Delhi) wherein it has been held as under: It cannot be said that was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) E.L.T. 158 (Trib.) - Aluminium dross and skimmings - although can be sold and fetch some price are not goods and not liable to excise duty. - Collector of Central Excise, Bhubaneswar v. Aluminium Industries Ltd. - 1987 (31) E.L.T. 748 (Trib.) - Aluminium dross and skimmings - Dutiability - Waste/scrap obtained not by any process of manufacture but in course of manufacturing the end product not excisable goods. - Collector of C. Ex. v. Gayatri Glass Works -1988 (33) E.L.T. 124 (Trib.) - Waste/scrap dutiable only if obtained by a process of manufacture and not if generated in the course of manufacture of an end-product- Bhagar" - Molten or broken glass, generated during the course of manufacture of articles of glass not excisable." - Collector of Central Excise v. Dunlop India Ltd. -1988 (36) E.L.T. 329 (Trib.) - Waste/scrap - Arising during course of manufacture of tyres, tubes, flaps, etc. or resulting from destruction of manufactured products - Not ^ qualifying as manufactures" and hence not goods . - Indian Tube Co. Ltd. v. Collector of Central Excise -1988 (37) E.L.T. 418 (Trib.) - Waste picke/liquor is in the nature of waste product and has neith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India. It is well-known as a marketable commodity, both of Indian and foreign origin. The brass scrap produced in India must receive protection by the imposition of a countervailing duty on imported brass scrap. - Seshasayee Paper and Boards Ltd. v. Collector of Central Excise, Madras and Others reported in 1987 (28) E.L.T. 258, wherein, relying upon Khandelwal s case (supra), it has been held that causticising lime sludge manufactured out of paper, even though as scrap, is an excisable goods, capable of being produced or manufactured in India and hence is liable to duty. - Collector of Central Excise, Guntur and Others v. Andhra Pradesh State Electricity Board, Hyderabad and Others reported in 1987 (29) E.L.T. 324 (Trib.), wherein, also relying upon Khandelwal s case (supra) Fly Ash, a waste product, produced during the course of burning of pulverised coal is a big product and is a marketable, commercial commodity known and traded as such, has been held liable to excise duty. 13. In Khandelwal s case (supra), on facts, it was found that brass scrap is a commodity which is bought and sold in market on commercial basis. So, ratio of that judgment cannot be brought to bear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. In para 7 of his order dated 15-9-1988, ld. Collector has stated that the assessee has, in their letter dated 9-2-1982, and also in the written submission at the time of personal hearing, stated that the non-excisability of the carbide sludge is already decided by the Appellate Collector s orders nos. 138/WB/82 dated 19-7-1982 and 214/WB/82 dated 27-9-1982. The appellants have produced copies of both these orders on record. So, the department knew that carbide sludge is being formed as a result of manufacturing process by the appellant company, and aspects of its saleability and dutiability were already adjudicated. So, there was no suppression or there was no mis-representation. As the appellants were treating it as a waste product and that is why non-excisable, there was no question of declaring the facts to the department which otherwise the department knew. So, there was no question of clandestine removal also. Copy of show cause notice is not on record. But in the impugned order, the ld. Collector has not stated that there was any mis-representation. So, there are no grounds to invoke the extended period of limitation. In that case a show cause notice dated 2-12-1985 raisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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