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TMI Blog2018 (7) TMI 1586X X X X Extracts X X X X X X X X Extracts X X X X ..... wn to the market and cannot be held as excisable. CBEC has also changed its stand by following the decision of the Bombay High Court. The earlier circular suggesting that duty was payable on such Aluminium Dross and Skimming stand withdrawn. Appeal allowed - decided in favor of appellant. - E/74/2008 - FO/76029/2018 - Dated:- 1-5-2018 - SHRI JUSTICE (DR.) SATISH CHANDRA, PRESIDENT and SHRI V.Padmanabhan, Member (Technical) Shri Arijit Chakraborty, Advocate and Shri Nilatpal Choudhary, Advocate for the Appellant (s) Shri H.S.Abedin, AC(AR) for the Respondent (s) ORDER Per Shri V.Padmanabhan The present appeal has been filed against the Order-in-Appeal No.32/KOL-VII/2007 dated 10.10.2007. 2. The brief facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or extraction of Aluminium and hence the same cannot be considered as waste and was liable to pay excise duty. 6. After perusal of the decision of the Hon ble Bomby High Court we note that the Hon ble High Court has overruled the decision of the Cestat Larger Bench in the case of Hindalco Industries Ltd. vs. Commissioner [2014(308) ELT 472 (Tribunal-LB). After considering the submissions the Hon ble Bombay High Court finally observed as under: 22 . That the Revenue does not wish to abide by them would not mean that the Tribunal is justified in not following them. We find that the attempt made by the Tribunal to hold that what is marketable and satisfies the requirement stipulated in the Explanation necessarily means that they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision can be applied only if the facts are identical. True it is that the Hon ble Supreme Court holds this way, however, what are those facts and emerging from the record of this case which would enable it to take a different view have not been spelt out by the Tribunal. Even these observations and conclusions would go to show that the Tribunal does not dispute that it is considering the same controversy and in relation to the same aluminium dross, which could be termed as either a by-product or waste or scrap or rubbish. Once there are twin tests, then, all these observations are of no assistance to the Revenue. The reliance placed by Mr. Sethna on a Judgment in the case of this very Assessee rendered by the Allahabad High Court 2009 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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