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TMI Blog2015 (10) TMI 1357X X X X Extracts X X X X X X X X Extracts X X X X ..... 85 - CESTAT MUMBAI (LB)) has reversed the finding of the Larger Bench judgment of the Tribunal in the same case that during the period w.e.f. 10/5/08 the aluminium dross and skimming were excisable. In view of this judgment also the finding of the Commissioner (Appeals) that the goods, in question, are not excisable cannot be assailed. - There is one more reason why the impugned order is correct. In terms of Chapter Note 3 to Chapter 26 of the Tariff, heading 26.20 applies only to that ash and residue which are used in the industry for extraction of metal or as starting material for manufacture of metal compounds. Such ash and residues would, obviously, be marketable as there would be demand for the same from metal extraction and chemical i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder-in-original dated 06/9/05 by which the above-mentioned three demands totalling ₹ 1,07,57,673/- were confirmed against the respondent alongwith interest. However, no penalty was imposed. On appeal being filed to Commissioner (Appeals) against this order, the Commissioner (Appeals) vide order-in-appeal dated 18/1/06 following the Apex court decision in the case of Union of India vs. Indian Aluminium Company Ltd. reported in 1995 (77) E.L.T. 268 (S.C.) set aside the Additional Commissioner s order holding that the aluminium dross and skimming emerging in process of production of aluminium are not marketable goods. Against this order of the Commissioner (Appeals), the Revenue is in appeal. 2. Shri Ranjan Khanna, the learned DR, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming which arise in course of manufacture of aluminium from alumina by electrolysis process and in the dross and skimming arising in the present case the metal content is much higher, that the dross and skimming arising in this case are marketable which is evident from the fact that the same were being regularly sold by the respondent, at the price ranging from ₹ 20,000/- to ₹ 22,000/- per MT which is close to the price of finished product, that these dross and skimming are arising regularly and, hence, in view of the Apex court s judgment in the case of Commissioner of Sales Tax vs. Bharat Petroleum reported in 1995 (77) E.L.T. 90 (S.C.), an intention to manufacture same has to be presumed and that in view of this, the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be excisable goods w.e.f. 10/5/08 in view of explanation added to Section 2 (d) of Central Excise Act, 1944, as they are covered by heading 2620 and are regularly bought and sold for consideration, that this judgment of the Larger Bench has been reversed by Hon ble Bombay High Court vide judgment reported in 2015 (315) E.L.T. 10 (Bom.), wherein the Hon ble Bombay High Court held that even w.e.f. 10/5/08, the dross and skimming of aluminium cannot be treated as goods and, hence excisable, that in this judgment, Hon ble Bombay High Court referred to the judgment of Hon ble Allahabad High Court in the case of Balrampur Chini Mills Ltd. vs. Union of India reported in 2014 (300) E.L.T. 372 (All.), wherein Hon ble Allahabad High Court in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find Apex court judgment in the case of Union of India vs. Indian Aluminium Co. Ltd. (supra) has held that the dross and skimming of Aluminium neither goods nor marketable commodities and, hence, are not liable to excise duty. Though Apex court s judgment pertains to the period prior to 1986 when there was no specific entry in the Central Excise Tariff for dross and skimming of non-ferrous metal in the Central Excise Tariff and the such dross and skimming was sought to be taxed under Tariff item 68 of the Central Excise Tariff, and during the period of dispute there was a specific heading 2620 covering the dross and skimming of Aluminium, just because a particular product is covered by a tariff entry, it would not imply that the same is ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sailed. 5. There is one more reason why the impugned order is correct. In terms of Chapter Note 3 to Chapter 26 of the Tariff, heading 26.20 applies only to that ash and residue which are used in the industry for extraction of metal or as starting material for manufacture of metal compounds. Such ash and residues would, obviously, be marketable as there would be demand for the same from metal extraction and chemical industry. But in this regard, no evidence in form of evidence of end use of the dross for extraction of Aluminium or for manufacture of Aluminium compound has been produced. Therefore the dross and residues, in question, is not covered by 2620. 6. In view of the above discussion, we do not find in the merit in the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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