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TMI Blog2018 (4) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... that: - Admittedly, the finished goods cleared were on payment of duty. When they were returned back to the manufacturer they are entitled to take credit of such duty as if it is input credit in terms of Rule 16(i) of the CER 2002 - credit allowed. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... eration received on sale of such fly ash. We note that the fly ash emerging during the course of generation of electricity cannot be considered as a manufactured product liable to Central Excise duty. In this connection, the observation of the Hon'ble Madras High Court in Mettur Thermal Power Station (supra) is relevant. The Hon'ble High Court recorded as below: "24. From the above judgment of the Supreme Court, it is clear that the first test of the process of levy of excise duty is that the product has to be produced or manufactured and the second test being that the product so produced or manufactured should be a marketable commodity. Further, the Supreme Court has also categorically held that levy of excise duty is on the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the product alone would not be suffice to levy duty on the „fly ash‟, there being no manufacturing process involved." 6. The dispute in the present case is squarely covered by the findings of the Hon'ble High Court, as above. Accordingly, we find no merit in the impugned order and set aside the same". 6. By following our earlier decision (supra) and considering the facts and circumstances of the case, we set aside the demand on fly ash". 4. On the second issue, we note that the manufactured goods cleared on payment of duty by the appellant were sometimes returned by the buyer due to certain defects. Upon such return of the goods, the appellant availed credit of the duty paid at the time of final clearance in terms of R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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