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TMI Blog2024 (6) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... e combined with determination that the insertion does not alter the fundamental step of manufacture, the impugned orders lack merit - appeal allowed. - MR C J MATHEW, MEMBER (TECHNICAL) AND MR AJAY SHARMA, MEMBER (JUDICIAL) Shri Rajesh Ostwal, Advocate for the appellant Shri Sunil Katiyar, Assistant Commissioner (AR) for the respondent ORDER These two appeals of M/s Finolex Cables Ltd, arising from fastening of demand of duties of central excise of ₹ 4,61,694 and ₹ 1,15,05,004 for January 2012 and for February 2012 to January 2013 in one order [order-in-original no. PUN-EXCUS-001-COM-032-033-13-14 dated 20th November 2013] and of ₹ 81,59,711 for February 2013 to December 2013 in another order [order-in-original no. PUN-EXCUS-001-COM-013-14-15 dated 2nd July 2014] under section 11A of Central Excise Act, 1944, along with applicable interest under section 11AA of Central Excise Act, 1944, and imposition of penalties under rule 26 of Central Excise Rules, 2002, relate to the finding of Commissioner of Central Excise, Pune-I that waste and scrap arising during the course of manufacture of insulated electrical wires and cables are also liable to duties of central exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned goods as other waste and scrap corresponding to tariff item 7602 0090 of Schedule to Central Excise Tariff Act, 1985. 4. Learned Counsel submitted that the issue of dutiability of scrap arising in the process of manufacture undertaken by them stood settled in decisions of the Tribunal in Finolex Cables Ltd v. Commissioner of Central Excise, Pune [1996 (86) ELT 418 (T)], in Finolex Cables v. Commissioner of Central Excise, Pune [1997 (96) ELT 406 (T)] and in Finolex Cables Ltd v. Commissioner of Central Excise, Pune [1998 (100) ELT 517 (T)] of which the first and last was affirmed by the Hon ble Supreme Court. Furthermore, he contended that acceptance of the order of Commissioner of Central Excise, Pune-I, which held that the insertion of Explanation was not of consequence, thus established that duty was not leviable prior to and subsequent upon amendment following which they, in error, had paid duty for a period thereafter. According to this was also held by the Hon ble Supreme Court in Union of India v. DSCL Sugar Ltd [2015 (322) ELT 769 (SC)] and he submitted that like finding of the Hon ble High Court of Bombay in Hindalco Industries Ltd v. Union of India [2015 (315) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance capable of being bought or sold for consideration and as such goods shall be deemed to be marketable. Thus, it introduce the deeming fiction by which certain kind of goods are treated as marketable and thus excisable. 8. However, before the aforesaid fiction is to be applied, it is necessary that the process should fall within the definition of manufacture as contained in Section 2(f) of the Act. The relevant portion of amended Section 2(f) reads as under : Section 2(f) - manufacture includes any process - (i) incidental or ancillary to be completion of a manufactured product; (ii) which is specified in relation to any goods in the section or Chapter notes of [The First Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986) as amounting to [manufacture; or] (iii) which in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer; and the word manufacture shall be construed accordingly and shall include not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision does not take into account the fact that the authoritative pronouncement by the Supreme Court and repeatedly rendered is binding on it. That is law declared under Articles 141 of the Constitution of India. That it is rendered in the case of identical issues, controversy and the Assessee makes these Judgments of the Supreme Court all the more binding. Their binding effect is not lost merely because the Tribunal has another occasion to consider the issue or another shade of the same controversy. So long as there are Supreme Court Judgments in the field, we do not see how the Revenue could have proceeded to disregard them. 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 liable for imposition of duty under Section 3 is directly contrary to the binding Judgments of the Hon ble Supreme Court on the same issue. The attempt of the Tribunal in para 6.5 in proceeding to analyse that the process and concluding that nobody deliberately manufactu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not goods, and that there was no event of manufacture of waste or scrap. In the result, it is held that waste and scrap of wires and cables are not excisable goods and the question of their classification under CETA, 1985 does not arise. So far as the satisfaction of the officers as to past clearances of the materials as scrap, the appellants in this appeal have submitted that they can produce documentary evidence to support their claim and that they will be in a position to satisfy Central Excise Officers on this aspect with reference to the description in the invoices, the price fetched, and the mode of sale of the material which was on weight basis. It would appear that usable wires and cables are sold in length. This aspect may also have to be considered with the submission that under the Indian Electricity Act and the Rules made thereunder, it is an offence to sell wires with improper insulation, voltage, etc. They have, further, submitted that the percentage of total production of cables whether before 1-3-1986 or on and after that date would more or less remain the same. Therefore, it is directed that in respect of past clearances of such scrap where it was without excise pr ..... 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