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TMI Blog2004 (7) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... ss lead slag emerges as a waste product. It is tapped from the blast furnace and is shifted from the plant area to dump yard. The content of lead in the slag is around 1.5%. On the basis of the ER I return filed by the appellants it was found by the central excise that they have cleared lead slag and W.K. slag for captive consumption without payment of central excise duty for construction of jarosite pond claiming exemption from payment of duty under Notification 67/95, dated 1-3-1995. As per proviso to this Notification, exemption from duty is given on the goods used within the factory of production in relation to manufacture of final product subject to condition that final product should be cleared on payment of duty. Since it was found t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. Ltd. [1995 (77) E.L.T. 268 (S.C.)] (b) Union of India v. Ahmedabad Electricity Co. Ltd. [2003 (158) E.L.T. 3 (S.C.)] (c) CCE, Patna v. Tata Iron Steel Co. Ltd. [2004 (165) E.L.T. 386 (S.C.)] (d) Elphinstone Metal Rolling Mills v. CCE, Bombay [2004 (167) E.L.T. 481 (S.C.)] (e) CCE, Jaipur v. Mehta Vegetables Products [1997 (93) E.L.T. 229] (f) Amar Wire Rolling Mill v. CCE, Mumbai [1999 (114) E.L.T. 41] (g) Mukand Ltd. v. CCE [2002 (148) E.L.T. 677] (h) Tata Iron Steel Co. Ltd. v. CCE [1997 (94) E.L.T. 258] (i) CCE v. Dhillon Kool Drinks Beverages Ltd. [2001 (130) E.L.T. 475] (j) Affirmation of the decision by the Supreme Court [2002 (144) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items like lead slag and W.K. slag since they are not used in industry either for extraction of metals or as a basis for manufacture of chemical compound of metals. This is supported by HSN explanatory notes to Chapter Heading 26.20, which is as under : "This heading covers ash and residues (other than those of heading 26.18, 26.19 or 71.12) which contain metal or metal compounds, and which are of a kind used in industry either for the extraction of metal or as a basis for the manufacture of chemical compounds of metals....." He finally pleaded that the goods that are not mentioned in the schedule are not excisable goods leviable to duty under Section 3 of Central Excise Tariff Act. He relied on the following decisions : (a) CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive consumption. 5. We find that first it is necessary to consider whether the product slag is an excisable commodity or not. As per Oxford Dictionary slag means refuse left after ore has been smelted. Whether slag is covered by excisable goods or not has been examined by the Tribunal in case of Mukand Ltd. v. CCE, Mumbai reported in 2002 (148) E.L.T. 677 where it was held that slag obtained in manufacture of blooms and billets is neither marketable nor has any commercial value. It does not contain any recoverable metal and hence not excisable. In another case of Tata Iron and Steel Company Ltd. v. CCE, Patna reported in 1997 (94) E.L.T. 258, Tribunal has held that molten slag though sold by assessee is not a marketable commodity in comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtraction of the metal nor it is the basis for manufacture of chemical compounds of metal. No evidence has been produced by the Department that it can be used for either of these two purposes mentioned in Note 3 to Chapter 26. Therefore, the slag can also not be classifiable under sub-heading 2620.00 has been done by the Commissioner. In the circumstances, we find that neither it is an excisable product liable for Central Excise arisen due to manufacture nor it is marketable commodity. It is also not covered by sub-heading 2620.00. Therefore, no duty can be charged on these products. This position was also held by the Commissioner appeals in case of same assessee in his Order-in-Appeal No. 27/92/(V)C.E., dated 30-7-1992. Therefore we do not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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