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TMI Blog2009 (11) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... ing during the course of manufacture of zinc sulphate, is waste and the same is or is not capable to attract excise duty payable on the excisable item? (B) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in applying ratio laid down by the Apex Court in case of Tata Iron and Steel Company Ltd. [2004 (165) E.L.T. 386 (S.C.)] and in case of Commissioner, Meerut v. Titawi Sugar Complex [2003 (152) E.L.T. 21 (S.C.)] in confirming finding of the Appellate Commissioner? (C) Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in confirming decision of the Appellate Commissioner and consequently allowing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defence submissions which have been highlighted, and submitted that in the facts of the case there was a process and the duty was payable for the copper sludge in the market which has been disposed of as a waste. He further submitted that the Tribunal has failed to appreciate about the aspect of marketability of such waste arising in course of manufacture of the finished goods, and therefore submitted that the authorities below have committed a grave error. Learned Senior Standing Counsel Mr. Oza submitted that it cannot be said to be a waste in course of manufacture of the finished product. The product has been sold in the market regularly, and therefore, the authorities below have erred in appreciating this aspect about the marketabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise, Patna v. Tata Iron & Steel Co. Ltd., 2004 (165) E.L.T. 386 (S.C.) on the aspect of marketability in respect of sale of waste arising in course of manufacture of finished goods and also quoted the observations of the Hon'ble Apex Court as under : "Dross and skimmings - Excisability of - Zinc dross, flux skimming and zinc scallings arising as by-product during galvanization of steel sheets, not excisable goods - Merely selling does not mean dross and skimming are marketable commodity as even rubbish can be sold - Everything which is sold is not necessarily a marketable commodity known to commerce and which, it may be worthwhile to trade in - Sections 2(d) and 3 of Central Excise Act, 1944. [1995 (77) E.L.T. 268 (S.C.) fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he waste like Copper Sludge (Agricultural Grade) would arise and therefore the submissions made by learned counsel Mr. Oza on the aspect of manufacture or the process cannot be accepted especially when during the process of manufacture of Zinc Sulphate (Agricultural Grade) the Copper Sludge has emerged, which is not excisable article. Therefore, the submissions made by learned counsel Mr. R.J. Oza cannot be accepted. 8. The another facet about the marketability of the waste is also required to be considered in back ground of the facts whether it is a different commodity which has taken shape after the process having a separate commercial identity as a product and the answer has to be in negative. Mere fact that even the waste could b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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