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TMI Blog2024 (7) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... and which by itself is a non- dutiable goods. When the Natural Sand turns out black during the manufacture of castings, it does not lose its character; may be the natural sand turns out black and other than this, there are no material differences brought out on record. The authorities have clearly erred in fastening the appellant with duty liability on Black sand which was not manufactured - the impugned order set aside - appeal allowed. - HON BLE MR. P. DINESHA , MEMBER ( JUDICIAL ) And HON BLE MR. M. AJIT KUMAR , MEMBER ( TECHNICAL ) Shri M. Kannan , Advocate for the Appellant Shri M. Selvakumar , Authorised Representative for the Respondent ORDER [ PER HON BLE MR. P. DINESHA ] These appeals are filed by the appellant against the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turns out black due to the temperature in the furnace/casting area and is no different from the natural sand. 4. The Adjudicating Authority after considering the arguments of the appellant, confirmed the demands proposed in both the SCNs vide (i) Order in Original No.33/2012, dated 30.11.2012 (ii) Order in Original No. 20/2011, dated 23.12.2011 (iii) Order in Original No. 02/2013, dated 31.01.2013 (iv) Order in Original No. 03/2014, dated 06.03.2014 (v) Order in Original No 02/2015, dated 03.06.2015 (vi) Order in Original No 06/2016, dated 12.04.2016. Aggrieved by the above demands, it appears that the appellant filed appeals before the first appellate authority. The First appellate authority in the impugned order refers to the definition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. First Appellate Authority having thus upheld the demands per common Orders in Appeal, the present appeals are filed before this forum against the same. 8. Shri Kannan, Ld. advocate appeared for the appellant and Shri Selvakumar, Ld. Assistant Commissioner appeared for the Revenue. 9. The case of the appellant is that the Black Sand which is the residue is nothing but the Natural Sand which has become black when used in the course of manufacture of castings and hence, is not a manufactured product, is not even a by-product nor an intermediary product to be subjected to Central Excise duty liability. It was contended that the authorities should have appreciated that the black sand is neither a product nor an intermediate product, is a tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 2 (d) which reads as under : excisable goods means goods specified in [fourth schedule] as being subject to a duty of excise and includes salt'. 13. By the above definition, the Ld. First Appellate Authority appears to have held that black sand is Goods . When the First Appellate Authority has held so, nothing is placed on record to indicate the process of manufacture that had resulted in the Manufacture of black sand and neither the First Appellate Authority nor the adjudicating authority has brought out anything on record to indicate the ingredients used for the manufacture of black sand. We also do not find anywhere in their orders as to denying the fact that it was the natural sand that turned Black upon being burnt in the furnac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incipal question involved in this civil appeal relates to exigibility of Cement Concrete Armour Units. At the outset we may state each of these units weight is about 50 metric tones. They are like Tripods which also keep the water calm and tranquil. In order to constitute goods twin tests have to be satisfied, namely, process constituting manufacture and secondly marketability. In the present case the second test of marketability is in issue. It is well-settled that goods are manufactured with the object of being sold in the market. If the goods are not capable of being sold then the test of marketability is not fulfilled. Further, the burden is on the Department to prove whether there is the process which constitutes manufacture and second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs are all wastes generated on account of the manufacturing process of iron or steel. But in the case on hand, black sand is not generated from the manufacture of iron or steel, rather sand which is used remains as sand only but in black colour upon being burnt; it is only the remains of Natural Sand after losing its natural colour. Hence, the above argument of the revenue also fails. Further, if the legislative intention was otherwise, then perhaps there was no difficulty for inclusion of black sand also against 2619 along with Slag, dross, etc . Moreover, it is also held by the Apex court in CCE Vs. Markfed Vanaspati Allied Industries [2003 (153) ELT 491 (SC)] that ..any goods does not become excisable merely because it falls under a tari ..... X X X X Extracts X X X X X X X X Extracts X X X X
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