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TMI Blog2024 (9) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of electricity, the fly Ash is generated inevitably. In this position the Hon ble Apex Court taken a view that this cannot be called as manufacture of Fly Ash and accordingly the same is not liable to duty. The relevant Judgment is in the case of UNION OF INDIA VERSUS AHMEDABAD ELECTRICITY CO. LTD. [ 2003 (10) TMI 47 - SUPREME COURT] wherein it was held ' it is clear that to be subjected to levy of excise duty 'excisable goods must be produced or manufactured in India For being produced and manufactured in India the raw material should have gone through the process of transformation into a new product by skilful manipulation. Excise duty is an incidence of manufacture and, therefore, it is essential that the product sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being bought and sold or marketable. If an item does not satisfy the requirement of definition of goods or the process by which the item emerges does not amount to manufacture, then no excise duty is leviable on such item. The aforesaid legal position has been clearly laid down by number of decisions of the Hon ble Supreme Court and High Courts as given below :- (a) Moti Laminates V. CCE- 1995 (76) E.L.T. 241 (S.C.) (b) Indian Aluminium 1980 (6) ELT 146(Bom.) affrirmed in 1995 (77) ELT 268 (SC) (c) CCE Patna V. Tata Iron Steel Co. Ltd. 2004 (165) ELT 386 (SC) 2.1. He submits that the Hon ble Supreme Court in the case of Union of India V/s. Ahmedabad Electricity Company Limited reported at 2003 (158) ELT 3 (SC) considered an identical issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case to be decided is whether the fly Ash generates out of burning of coal for generation of power whether the same is amounting to manufacture and exigible to excise duty. This issue is no longer res integra as the Hon ble Supreme Court settled this issue pre and post 01.03.2011, wherein it was consistently held that burning of coal for the purpose of generating power and emergence of fly Ash in this process does not amount to manufacture as the coal is not raw material for manufacturing fly Ash whereas the same is required for generation of electricity, the fly Ash is generated inevitably. In this position the Hon ble Apex Court taken a view that this cannot be called as manufacture of Fly Ash and accordingly the same is not liable to du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctivity. Therefore, neither ash nor cinder can be said to be products of a manufacturing process. From burning coal when you get either cinder or ash, it cannot be said that a new product had emerged. Cinder remains coal. In fact, the Department has itself described it as unburnt part of coal in the grounds of appeal in C.A. Nos. 2168-2169 of 2001 in the Ahmedabad Electricity Supply Company case 'Cinder is not a new product. After correctly describing cinder as unburnt part of coal, the Revenue cannot equate it to ash simply to somehow bring it within Entry 26.21 of the Tariff Act. In the First Schedule to the tariff. cinder does not find any place anywhere. It appears that it is because of this that the Revenue had to fall back upon En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court even for the period post 01.03.2011 Hon ble Madras High Court also held that Fly Ash generated during the burning of coal for generation of power being not a manufactured goods is not liable to duty. The said judgment of the Hon ble Madras High Court has been upheld by Hon ble Supreme Court, the extract of the decision of the Hon ble Supreme Court is as under :- 10. For the sake of deciding this issue, we will assume that cinder is ash and, therefore, is liable to be covered under Entry 26.21. The real question to be considered is whether all items listed in the First Schedule to the Tariff Act, per se become subject to levy of excise duty . From the above consistent view taken by the Hon ble Supreme Court in the similar fact wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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