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TMI Blog2014 (11) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... cess of manufacture of aluminium/non-ferrous metal products are manufactured goods and hence excisable w.e.f. 10/05/2008 in view of the explanation added to Section 2(d) of the Central Excise Act, 1944. - Decided against the assessee. - Appeals No. E/165/2011, E/1120/2012, E/85751 & 87523/2013 - Misc. Order No. M/1721/2014-WZB/C-II(EB) - Dated:- 19-8-2014 - S S Kang (VP), P R Chandrasekharan (T) and Anil Choudhary (J) For the Appellant : Shri Gajendra Jain, Adv. For the Respondent : Shri K.M. Mondal, Special Consultant JUDGEMENT Per: P R Chandrasekharan: The reference made to the Larger Bench reads as follows: (a) Whether Aluminium Dross and Skimmings or similar Non-ferrous Metal Dross and Skimmings, which arise in the process of manufacture of aluminium/Non (ferrous metal products can be considered as a manufactured goods' and hence excisable for the period post 10.5.2008 in view of the Explanation added to Section 2(d) of the Central Excise Act, 1944? Or (b) Notwithstanding the Explanation to Section 2(d), Aluminium Dross Skimmings or other Non-ferrous metal dross and Skimmings cannot be considered as manufactured products&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, zinc dross is, specifically mentioned as a tradable item and consequently it was held that zinc dross is an excisable product liable to excise duty. In view of these conflicting views expressed by two benches of the Tribunal, the reference mentioned above has been placed before the Larger Bench. 4. The learned counsel appearing for the appellant made the following submissions: 4.1 Dross skimmings are not manufactured goods in view of the series of decisions consistently holding that they are not manufactured goods and hence not liable to excise duty. The major decisions in this regard are (1) Union of India vs. Indian Aluminium Co. Ltd. Another vs. A.K. Bandyopadhyay Others 1980 (6) ELT 146 affirmed by the hon'ble apex Court reported in 1995 (77) ELT 268 (SC); (2) Commissioner of Central Excise vs. Indian Aluminium Co. Ltd. 2006 (203) ELT 3 (SC) (3) Indian Aluminium Co. Ltd. Another vs. Collector of Central Excise, Bangalore 1987 (31) ELT 158 affirmed by the apex Court in 1999 (111) ELT A200 (SC); (4) Commissioner of Central Excise, Patna vs. Tata Iron Steel Co. Ltd. 2004 (165) 386 (SC (5) Indian Aluminium Co. Ltd. vs. Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliance on the aforesaid judgments is of no avail. In the KEC International Ltd. case, the Tribunal, after considering the effect of the amendments to Section 2(d) held that zinc dross and zinc ash are marketable and hence excisable. While coming to the said conclusion, the Tribunal relied upon the judgment of the hon'ble Allahabad High Court in appellant's own case 2009 (243) ELT 481 and held that explanation to Section 2(d) creates a legal fiction by which any goods which are capable of being bought and sold for a consideration shall be deemed to be marketable and on this basis it was held that aluminium dross and skimmings are liable to duty of excise. 5.2 As regards the reliance placed on the decision of the hon'ble Allahabad High Court in the case of Balrampur Chini Mills (supra) the said decision was rendered in the context of Rule 6 of the CENVAT Credit Rules and it was observed by the hon'ble High Court that bagasse was being bought and sold prior to 10/05/2008 as well as thereafter and, therefore, the said addition of explanation to Section 2(f) did not make any difference about the marketability of bagasse. The learned consultant also placed reliance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Containing mainly lead: - Containing mainly copper : 2620 40 - Containing mainly aluminium: 2620 40 10 --- Aluminium dross 2620 40 90 --- Other 6.2 Sub-heading 2620 40 deals with slag, ash or residues containing mainly aluminium. CETH 2620 4010 specially deals with aluminium dross and CETH 2620 4090 deals with other slag, ash or residues containing mainly aluminium. Thus, the aluminium dross, skimmings are clearly specified in the Central Excise Tariff and there is no dispute in this regard. 6.3 Explanation added to Section 2(d) vide Finance Act, 2008 provided that, for the purpose of the said clause goods' includes' any article, material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposefully, manufacture of waste and scrap, whether it be of aluminium or other metals or of plastics, rubber, textiles, glass, etc. Waste arises in the manufacturing process of various products. It is to tax such waste and scrap which arise in the course of manufacture of other products, separate entries are created in the tariff, including those for aluminium dross and skimmings. Thus, the intent of the legislature is very clear. Therefore, a specific entry created for the purpose of levy of duty/tax cannot be merely wished away or brushed aside, by holding that waste and scrap are not manufactured goods. It is a settled principle in taxation that no part of the law should be interpreted in such a way so as to make it non-effective or odious. Viewed from this perspective, when dross and skimmings are specifically mentioned in the tariff, it would not be unreasonable to assume that such products are manufacture goods even though they arise in the course of manufacture of other products. Inasmuch as the goods which are capable of being bought and sold are deemed to be marketable, in view of explanation to Section 2(d), the twin tests of manufacture' and marketability' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e specified or included', if these are not specifically covered under other items of the tariff. In other words, the hon'ble apex Court was concerned with the marketability of dross and skimmings. The question whether these were manufactured goods or not, was not before the apex Court. Further apex Court clearly observed that they do arise in the course of manufacture of other goods. 6.8 In the Tata Iron Steel Co. Ltd.'s case (supra) relied upon by the appellant, wherein excsiability of zinc dross and skimmings arising as byproduct during galvanization of steels sheets was in question, the hon'ble apex Court held that, merely selling does not mean that dross and skimmings are a marketable commodity as even rubbish can be sold. Everything which is sold is not necessarily a marketable commodity known to commerce and may be worthwhile to trade in. In this case also, the apex Court did not consider the question of manufacture' but merely considered the question of marketability of dross and skimmings. These decisions were followed in Indian Aluminium Co. Ltd. 2006 (203) ELT 3 (SC) wherein the hon'ble apex Court held that dross and skimmings are not excisab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus classicus : Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. In our considered view, the facts of the case before us are different and distinguishable from those involved in the Balrampur Chini Mills Ltd. case. It is for this reason that the very same Allahabad High Court, in its decision render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision or where the earlier decision is per incuriam . However, these are fetters only on a coordinate bench which, failing the possibility of availing of either of these gateways, may yet differ with the view expressed and refer the matter to a bench of superior strength or in some cases to a bench of superior jurisdiction. In the facts of the case before us, the legal position has undergone a change after the decisions were rendered by the High Court and the Supreme Court with regard to aluminium / zinc dross and skimmings. An explanation has been added to section 2(d) to provide for a deeming fiction in respect of goods. Secondly, a specific tariff entry has been created in Heading 262040 for aluminium dross, which was not the position when the issue was examined earlier by the hon'ble Apex Court. Therefore, the ratio of these decision cannot be applied to the facts of the case before us. 7. In the factual and legal matrix discussed above, we answer the reference made to us as follows:- Aluminium dross and skimmings and similar non-ferrous metal dross and skimmings which arise as a by-product in the process of manufacture of aluminium/non-ferrous metal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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