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TMI Blog2019 (2) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... that the said waste is cleared for a consideration, therefore, no sale is involved. Base cream is not packed in tubes, as in the case of normal toothpaste tubes sold, it cannot be held that they are marketable as in respect of such products packing is am essential requirement to make it marketable. The waste cleared by the appellants does not even satisfy the test of saleability. Therefore, even w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter a duration of time the same was removed in the form of waste after obtaining due permission from the Municipal authorities. Revenue seeks duty on the waste of base cream thus cleared by the appellants. Deputy Commissioner, Central Excise, vide order dated 28/10/2010 confirmed a duty of ₹ 61,196/- and imposed equal amount of penalty. The Commissioner (Appeals) vide order dated 21/01/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eel Co. Ltd. - 2004 (165) ELT 386 (SC), wherein the Hon'ble Apex Court held that merely selling does not mean that a commodity is a marketable commodity as even rubbish can be sold. He further submitted that the Commissioner (Appeals) has not considered their submissions on the applicability of Section 4A and admissibility of Cenvat Credit in the event the goods are held to be excisable for the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment. We find that the logic of learned Commissioner (Appeals) fails to impress. It is a well known fact that there is no estoppel in taxation matters and the principle is equally applicable to the Revenue as well as the appellants. In the instant case, duty was sought to be demanded on the waste cleared by the appellants. It is not the case of the Revenue that the said waste is cleared for a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the facts that the appellants have informed about their activity to the department well in 2005 itself and have been regularly filing RT-12/ER-1 returns, imposition of penalty under Section 11AC is not sustainable. However, as we hold that the case of the Revenue does not stand on merit discussions on applicability of penalty are of no consequence. 6. In view of the above, the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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