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TMI Blog2009 (9) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... ut a new commodity, substance, and it is implicit that such goods must be usable, saleable and marketable - If the goods are marketable or are deemed to be marketable, as on now by the explanation added to Section 2(d) of Section 78 of the Finance Act, 2008, such goods included in the Schedule would attract excise duty. - Aluminium Dross and Skimming liable to excise duty as per deeming fiction - at this stage, we are not inclined to grant any interim order. - 1843 of 2009 - - - Dated:- 10-9-2009 - Sunil Ambwani and Ran Vijai Singh, JJ. S/Shri V.B. Upadhyay, Senior Advocate a/b Ritvik Upadhya, for the Petitioner. Shri R.C. Shukla, for the Respondent. [Order]. - Heard Shri V.B. Upadhyay, Senior Advocate assisted by Shri Rit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process of manufacture, is settled by various decisions of the Supreme Court as follows:- (1) CCE v. Indian Aluminium C. Ltd. - 2006 (203) E.L.T. 3 (S.C.) = (2006) 8 SCC 314. (2) CCE v. Tata Iron Steel - 2004 (165) E.L.T. 386 (S.C.) = (2004) 9 SCC 1. (3) Indian Aluminium Co. Ltd. v. A.K. Bandyopadhyay - 1980 (6) E.L.T. 146 (Bom). (4) Hindalco Industries Ltd. v. CCE, 1996 (86) E.L.T. 571 (T) (5) CCE v. Hindalco Industries - 2000 (166) E.L.T. 551 (T) (6) Indian Aluminium Co. Ltd. v. CCE - 2002 (53) RLT 219 (T). (7) Pennar Aluminium Co. Ltd. v. CCE - 2007 (207) E.L.T. 572 (T). 7. The Finance Act, 2008 vide Section 78 has amended Section 2(d) of the Central Excise Act by inserting explanation as follows :- "Explanation.- For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aracter or use, which can ordinarily come to the market to be bought and sold, the excise duty is not leviable. The 'Aluminium Dross and Skimming,' are not the result of any process of manufacture. They are impurities, usually an oxide formed on the surface molten metal. They are neither by product much less an end-product or finished product. They were included in the Schedule of Central Excise Tariff Act, 1985, from before the amendment to Section 2(d) of the Central Excise Act by Finance Act, 2008. He submits that the opinion of the Superintendent, Central Excise is not valid and is violative of the established position in law, which is not changed by the amendment, and consequently the Court must stay the realisation of excise duty for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h goods must be usable, saleable and marketable. The duty is on production or manufacture is for taking out such goods to the market for sale. If the goods are marketable or are deemed to be marketable, as on now by the explanation added to Section 2(d) of Section 78 of the Finance Act, 2008, such goods included in the Schedule would attract excise duty. The marketability of the goods becomes a factor, which links the levy of excise duty, to its production or manufacture. The legislative change has been noticed to issue the orders to clear the goods only after proper invoicing, indicating duty payable, as per set process and procedures. For the reasons given as above, at this stage, we are not inclined to grant any interim order. - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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