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TMI Blog2019 (1) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of said clearance has also not been shown in the ER Returns filed by them. Department, therefore issued a SCN No.889 dated 18.04.2013 proposing the recovery of the Central Excise Duty amounting to Rs. 22,756/- alongwith the interest at appropriate rate and the proportionate penalties. The Assistant Commissioner vide the order in Original No.05 dated 08.11.2013 has confirmed the demand of Central Excise duty amounting to Rs. 4,550/-, however, has dropped recovery of the duty amounting to Rs. 18,206/-. The interest and penalty for the same amount of Rs. 4,550/- was also confirmed. Being aggrieved, an appeal was preferred. Commissioner (Appeals) vide the Order under challenge i.e. the Order-in-Appeal No.77 dated 18.05.2017 has upheld the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility. Though fly-ash has admittedly been sold by the appellant, thus, fulfilling one condition of marketability but it does not qualify the definition of manufacture. 5. The Delhi Bench of this Tribunal in the case of M/s. Rama Industries Ltd. v. Commissioner of Central Excise, Chandigarh reported in 2004 (178) E.L.T. 720 (Tri. - Del.) held that by-product consciously used in separate manufacturing process to produce exempted goods - HELD : Inputs used in process wherein by-product emerged could not be said to be used both in exempted and dutiable products and credit of duty cannot be demanded on basis of 8% of price of exempted goods under Rule 57CC of erstwhile Central Excise Rules, 1944 - Rule 57D ibid - Rule 6 of Cenvat Credit Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification cannot create levy unless and until it is available as per the statute as it was held by Tribunal, Mumbai in the case of Salco Extrusions Pvt. Ltd. vs. CC, Bombay-II reported in 1984 (16) ELT 356. 8. As already discussed above, statute levy excise duty on the goods which are manufactured and have marketability. Fly-ash in the given circumstances is qualifying only one of the conditions i.e. of marketability and is not qualifying the condition of manufacture, it being compulsorily generated during the process of generation of electricity from lignite and the appellant is the manufacturer of lignite. In the given circumstances, fly-ash is not even the by-product. The findings of the Commissioner (Appeals) are therefore not sust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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