9911796707
TMI Blog2019 (2) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... de - appeal dismissed - decided against Revenue. - Excise Appeal No. 52818 of 2018 - FINAL ORDER No.50099/2019 - Dated:- 9-1-2019 - Mr. C L Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial) Shri R K Mishra, AR for the Appellants Shri Anurag Kapur, Advocate for the Respondent ORDER Per C L Mahar: Brief facts of the matter are that the respondent-assessee are engaged in manufacture of electricity falling under Chapter sub heading 2716 of Central Excise Tariff Act, 1985. During the course of electricity generation, coal is used as a fuel for generation of electricity. During the process of combustion of coal, results in generation of fly ash as a residual waste which rises up in the air and same i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. The learned Commissioner (Appeals) has primarily decided the issue following the judgment of Hon ble Supreme Court in the case of Union of India vs. DSCL Sugar Ltd. [2015 (322) ELT 769 (SC)]. The department is before us against the impugned Order-in-Appeal on the ground that the Commissioner (Appeals) has gravely erred in applying the ratio of Hon ble Apex Court decision in the case of Union of India vs. DSCL Sugar Ltd.(supra) saying that the said decision was delivered in the context of excisability of the Bagasse wherein the process of manufacture of sugar results from crushing of sugarcane which results in sugarcane juice and Bagasse. Since in this case, the issue pertains to the generation of fly ash which arises under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CBEC vs. Mettur Theramal Power Station [2017 (349) ELT 708 (Mad) where duty demand was raised against the assessee engaged in the generation of electricity, for clearing fly ash (emerged during combustion of coal for generation of electricity) without payment of duty on the ground that duty is chargeable on such product wef 01.03.2011. 5. The Hon ble High Court held that before delving into the question of exemption benefit under the Notification 89/95 CE, it is pertinent that fly ash has to satisfy the test of manufacture. Inasmuch as fly ash emerges as a by-product during the manufacture of electricity, there being no manufacture of such product. Further, it was held that merely because there is a specific or residue entry for suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was nil, this does not mean that they were not excisable goods. They were excisable goods. Nil rate of duty is also a rate of duty. Therefore, electricity is excisable good and can be construed as exempted goods by virtue of the above Notification No. 89/95-C.E., dated 18-5-1995 as it has been clearly clarified in the Explanation that ....for the purpose of this notification, the expression exempted goods means excisable goods which are chargeable to Nil rate of duty. Therefore, as rightly contended by the learned counsel for the petitioner, the exemption Notification No. 89/95-C.E. would squarely applicable to the product fly ash , which is a waste arise during the course of manufacture of electricity, which is an excisable good cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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