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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 ..... espondent were selling the aluminium dross and skimming without payment of duty. The Department was of the view that the aluminium dross and skimming being covered by heading 2620.00 of the Central Excise Tariff is excisable goods as the same are specifically covered by heading 2620.00 and are marketable. It is on this basis that three show cause notices were issued to the respondent for demand of duty of Rs. 1,07,57,673/- from them for the period from June 2003 to March 2005 alongwith interest on it under Section 11AB and also for imposition of penalty. The show cause notices were adjudicated by the Additional Commissioner by a common order-in-original dated 06/9/05 by which the above-mentioned three demands totalling Rs. 1,07,57,673/- wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions that the heading 2620 applies only to, ash and residue of a kind used in the industry either for extraction of metal or as a basis for manufacture of chemical compounds of metals, that per MT price ranging from Rs. 20,000/- to Rs. 22,000/- at which the dross and skimming was being sold indicates that it is covered by Chapter Note 3, that while the Apex court s judgment in the case of Union of India vs. Indian Aluminium Co. Ltd. (supra) relied upon in the Commissioner (Appeals) s order is with regard to dross and skimming arising in course of melting of aluminium ingots, the dispute in the present case is in respect of dross and skimming which arise in course of manufacture of aluminium from alumina by electrolysis process and in the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is judgment is still valid, that it is only w.e.f. 10/5/08 that Section 2 (d) of the Central Excise Act, 1944 was amended by adding an explanation, that for the purpose of Clause (d) of Section 2, the goods include any article material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable, that Larger Bench judgment of the Tribunal in the case of Hindalco Industries Ltd. vs. CCE, Belapur, Mumbai III reported in 2014 (308) E.L.T. 472 (Tri. LB) has held that aluminium dross and skimming arising as by-product in course of manufacture of aluminium products would be excisable goods w.e.f. 10/5/08 in view of explanation added to Section 2 (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleaded that there is no infirmity in the impugned order. 4. We have considered the submissions of both the sides and perused the records. 5. The only point of dispute in the present case is as to whether the aluminium dross and skimming arising in course of manufacture of aluminium products during the period of dispute would attract Central Excise duty. There is no dispute that heading 2620 covers Slag, ash and resident (other than from manufacture of iron and steel) containing mainly zinc, lead, copper, aluminium and specifically covers aluminium dross. The dispute is only as to whether the same could be treated as marketable and, hence, excisable goods. We find Apex court judgment in the case of Union of India vs. Indian A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f existence of market for aluminium dross and skimming, like prices of this item being quoted in commercial journals and news papers, existence of persons selling this product or e-commence websites for sale of Aluminium dross and skimming etc. has been produced. We also find Hon ble Bombay High Court in the case of Hindalco Industries Ltd. vs. CCE, Belapur, Mumbai III (supra) 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. 5. There is one more reason why the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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