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TMI Blog2015 (1) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... course of manufacture of Ethylene Dichloride and Viny Chloride Monomer, which is in turn used in the manufacture of the aforesaid final products, Hydrogen Chloride gas is generated as well as certain complex waste material, which consists of highly chlorinated hydrocarbons. The Hydrogen Chloride gas is then dissolved in water in a specially built tank to give hydrochloric acid of 31% to 33% strength and cleared on payment of duty. The complex waste material generated is highly corrosive in nature and terms as 'hazardous waste' under the pollution control norms which was disposed by process of incineration. After such processing of the complex waste, the appellant cleared the material known as 'Waste Weak HCL acid' which contains a concentr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hydrocarbons. This material is corrosive in nature and termed as 'hazardous waste' (waste category - 6) under the EPA regulations. This hazardous waste has to be disposed in a particular manner, as per Pollution Control Board norms and the process of disposal is called incineration. The waste material generated in Monomer plant is destroyed in a hitech incinerator for which technology has been received from M/s. Caloric GmbH, Germany. The technology is advanced and different from the normal process. The incinerator plant consists of a furnace, waste heat boiler, a quench vessel to extract absorbable toxic contents and chemical in the flue gas and then ensure scrubbing for meeting emission standards. In the furnace, a temperature of 1250oC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; 16. We are of the opinion that the dross and skimming are merely the refuse, scum or rubbish throughout in the process of manufacture of aluminium sheets and, therefore, 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 brought 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. xxxxx xxxxx xxxxx xxxxx xxxxxx 22.In our opinion, this Court in Indian Aluminium Co. Ltd. (supra) has held that merely selling does not mean dross and skimming are marketab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y because certain articles fall within the schedule does not make them marketable. Actual sale in the market is not necessary but the articles must be capable of being sold in the market or known in the market as goods. 5. This view as has been recently reiterated in the decision of Union of India & Ors. v. Sonic Electrochem (P) Ltd. 2002 (7) SCC 435 where this Court was to consider whether the plastic body of an Electro Mosquito Repellent (EMR) was liable to excise duty. In negativing the question it was held: It may be noticed that in the cases r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report which merely stated that the sample showed that the items were organic chemicals . It does not in any way establish marketability. Nor can marketability be established on the basis of mere stability. Something more would have to be shown to establish that DECA AND CMBE were known in the market as commercial products. 7. In the case of CCE Vs. Dhakad Metals Pvt. Ltd. - 2010 (257) ELT 535 (Guj.), the Hon'ble Gujarat High Court held as under:- 8. he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged as a result of process of manufacture. Hence, spent sulphuric acid is a manufactured product. It was further held that the said item was sold and finds use in the manufacture of fertilizer. In the present case, Revenue has failed to place any material to show that the goods are sold and used in the further manufacture of any item. Hence, the said case law is not applicable. 9. In view of the above discussions, we find that there is no material available to show that waste weak HCL acid is marketable and therefore it cannot be treated as an excisable commodity. Accordingly, the impugned orders are set aside and the appeals are allowed with consequential relief. (Operative portion of the order was pronounced in open court on 24.10.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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