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TMI Blog2015 (8) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... under heading 26.21 of Central Excise Tariff. The same view has been taken by the Apex Court in the case of Union of India vs. Ahmedabad Electricity Co.Ltd. (2003 (10) TMI 47 - SUPREME COURT OF INDIA). It is settled law that just because an item is covered some heading/sub-heading of the tariff, it would not become excisable, unless there is evidence on record to prove that the same is marketable in the sense that it is worthwhile to trade in that product and there is existence of market for the same. It is also well settled law that the burden of proving the marketability is on the department. In this case, the appellant is not selling the fly ash and the appellant offered the same free to any person who was ready to lift the same. The dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above mentioned duty was confirmed against the appellant and penalty of equal amount was imposed on them. The Assistant Commissioner held that fly ash obtained while burning coal in the boiler is covered under chapter 26 and since Cenvat credit has been taken in respect of input services, the same would attract duty @ 5% Adv. under Notification No.02/11-CE. The above order of the Assistant Commissioner was upheld by the Commissioner (Appeals) vide Order-in-Appeal dt.30.4.14. Against this order of the Commissioner (Appeals), this appeal has been filed alongwith stay application. 2. Heard both sides in respect of stay application. 3. Ms.Priyanka Goel, Advocate, the learned Counsel for the Appellant pleaded that neither show cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their favour and hence the requirement of pre-deposit of duty demand, interest and penalty may be waived for hearing of their appeal and recovery thereof may be stayed. 4. Shri M.S.Negi, learned DR opposed the stay application by reiterating the findings of the Commissioner (Appeals) and pleaded that fly ash, in question, obtained by burning of coal in the boiler is specifically covered under heading 26.21 of Central Excise Tariff Act which cover 4 other slag and he submit that since fly ash obtained by burning coal is an excisable goods under heading 2621 and Cenvat credit in respect of various inputs including GTA service availed for transportation of the coal etc has been taken, the ash would attract 5% duty under Notification No.02/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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