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TMI Blog2005 (4) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... ot become excisable merely because it falls under a tariff entry. It must be a manufactured product known to the trade as a marketable commodity. The test of manufacture was not satisfied in respect of red mud. Hence, in our view, it is not necessary to examine the question whether red mud was marketable or not. The Tribunal s Larger Bench decision in the case of Markfed Vanaspati Allied Industries (supra) appears to be supportive of the appellants case. In that case, spent earth which emerged during the course of refining and bleaching of edible oils was found not to be a manufactured product. The Larger Bench held that, even if a commodity found mention in a specific Heading/sub-heading of the CETA Schedule, it would not be exigible to le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the total extent of Rs. 1,05,581/-, were confirmed by the original authority. Penalties were also imposed on the assessee by that authority. The first appellate authority sustained the demand of duty on the assessee but set aside the penalties. Appeal No. E/553/2004 is against this order of the Commissioner (Appeals). In a separate order, ld. Commissioner (Appeals) upheld a demand of duty of Rs. 86,507/- against the assessee for the period 8/2002 to 6/2003. This order is under challenge in Appeal No. E/993/2004. 2. In both the appeals, the question to be primarily settled is whether red mud is excisable or not. Ld. Counsel for the appellants submitted that red mud was only a waste which was cleared from the factory premises as its accumula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it was not a marketable commodity known to commerce. 3. Ld. SDR submitted that, even according to the process given by the appellants, red mud could be considered to have resulted from a process of manufacture. Admittedly, it was sold to cement manufacturers who used it as input for cement. Thus, according to ld. SDR, red mud had its own market. The fact that it did not fetch appreciable value was not relevant to the question whether it was marketable or not. Ld. SDR relied on the Supreme Court's judgment in F.G.P. Ltd. v. U.O.I. [2004 (168) E.L.T. 289 (S.C.)] to support her contention that the test of marketability would be satisfied so long as the goods were available for purchase and that, even if there was only one purchaser for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y goods does not become excisable merely because it falls under a tariff entry. It must be a "manufactured" product known to the trade as a marketable commodity. The test of manufacture was not satisfied in respect of red mud. Hence, in our view, it is not necessary to examine the question whether red mud was marketable or not. The Tribunal's Larger Bench decision in the case of Markfed Vanaspati & Allied Industries (supra) appears to be supportive of the appellants' case. In that case, 'spent earth' which emerged during the course of refining and bleaching of edible oils was found not to be a 'manufactured' product. The Larger Bench held that, even if a commodity found mention in a specific Heading/sub-hea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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