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TMI Blog2018 (10) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by assessee, was manufactured goods after 10-5-2008 was contrary to the aforesaid judgment of the Apex Court. The impugned order upholding the view of original authority that cinder is a dutiable product and exigible to Central Excise duty cannot be sustained - Appeal allowed - decided in favor of appellant. - E/40087/2013 - 42583/2018 - Dated:- 8-10-2018 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) For the Appellant : Shri M. Karthikeyan, Advocate For the Respondent : Ms.T. Ushadevi, DC (AR) ORDER PER SHRI MADHU MOHAN DAMODHAR Appellants were doing job work exclusively for Dalmia Refractories, Dalmiapuram, manufacturing refractory bricks castables etc. and cleari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently issued a circular No.822/19/2005-CX dt. 18.11.2005 withdrawing their earlier circular dt.07.04.1998. iii) The Board has accepted the Supreme Court s affirmation that cinder is not an excisable product. iv) For these reasons, the impugned cinder cannot be subjected to excise duty and the demand is therefore unjustified and may be set aside. 3.1 On the other hand, Ld. A.R Ms. T. Usha Devi supports the impugned order. 3.2 She draws our attention to Board s subsequent clarification in Circular No.904/24/2009- CX dt. 28.10.2009 which confirms excisable nature of the products termed hitherto as waste, residue or refuse and the legislative intention to demand duty on such products. Hence cinders which are sold for consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is an excisable commodity. 5.3 The import of the said Supreme Court judgment and the Board s circular dt.18.11.2005 will then only mean that cinder is to be considered only as a nonexcisable commodity. 5.4 Both the lower authorities have placed reliance on the amendment to Section 2(d) of the Central Excise Act, 1944 w.e.f. 10.05.2008 by way of addition of Explanation. We find that the amended section 2(d) as it stood w.e.f. 10.05.2008 is as under : Section 2(d) excisable goods means goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act,1985 as being subject to a duty of excise and includes salt: Explanation for the purposes of this clause, goods‟ include any article, materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal holding that dross and skimming of Aluminium, Zinc and other non-ferrous metal arising as by-products during manufacture and sold by assessee, was manufactured goods after 10-5-2008 was contrary to the aforesaid judgment of the Apex Court. The relevant portions of the order are reproduced as under : 21. We do not see how, in the light of these authoritative pronouncements of the Hon‟ble Supreme Court, can the Tribunal take a different view. When the Hon‟ble Supreme Court holds and as in Grasim Industries Ltd. (supra) that the conditions contemplated under Section 2(d) and Section 2(f) have to be satisfied conjunctively in order to entail imposition of excise duty under Section 3 of the Act, then, we cannot agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conclusion that because there is a reference to these items in the Tariff Entry or the Tariff Schedule that would change the colour of the controversy. That would enable the Tribunal to then hold that the earlier Judgments and in the case of this very Assessee are no longer good law. However, we do not see how the decision in the case of Grasim Industries Ltd. (supra) and particularly the above reproduced paragraphs could have been brushed aside by the Tribunal. The Hon‟ble Supreme Court listed the twin tests and which have to be satisfied before the goods can be said to be excisable to tax or Central Excise duty. It is in these circumstances that the attempt of the Tribunal and which is supported before us by Mr. Sethna cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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