2014 (12) TMI 449 - AT - Central Excise

Waiver of pre-deposit and stay granted for 180 days due to non-marketable fly ash under Pollution Control Law

M/s ITC Ltd Paperboards & Specially Papers Division Versus Commissioner of Central Excise, Customs And Service Tax, HYDERABAD-III

The Tribunal waived the requirement of pre-deposit and granted a stay against recovery for 180 days from the date of the order. This decision was based on ... Waiver of Pre deposit - Manufacture of paper/paper board - Clearance of fly ash - Held that:- When the goods cannot be sold at all and there is difference between fly ash which is sold in the market and fly ash arising in the appellant’s factory, the charge of the department that the appellant sold the product for a consideration is improper. Taking note of the submission that the Commissioner for a different period has held that the goods are not excisable, we consider that the appellant has made out a case on merits for waiver of pre-deposit and stay against recovery. Accordingly, requirement of pre-deposit is waived and stay against recovery is granted for 180 days from the date of this order - Stay granted. Issues: Duty demand on clearance of fly ash under Central Excise Tariff Act, 1985.Analysis:1. The issue before the Appellate Tribunal was the duty demand of &8377; 30,08,624/- with interest confirmed for the clearance of fly ash during a specific period. The department claimed that fly ash is an excisable commodity classifiable under CETH 26209900 and is marketable for consideration.2. The appellant argued that the fly ash generated in their factory was not sold to anyone as it could not be used due to Pollution Control Law regulations. They highlighted that they incurred expenses for proper treatment and disposal of the fly ash without receiving any consideration. Additionally, they pointed out that in a different period, the Commissioner had dropped proceedings, deeming the goods non-excisable.3. The Tribunal acknowledged the appellant's argument, noting that the fly ash from the appellant's factory was not the same as the marketable fly ash. They found the department's charge that the appellant sold the product for consideration to be incorrect. Considering the Commissioner's previous decision that the goods were not excisable for a different period, the Tribunal concluded that the appellant had a strong case for waiver of pre-deposit and stay against recovery. Consequently, the requirement of pre-deposit was waived, and a stay against recovery was granted for 180 days from the date of the order.