Court upholds excisability of "Zn-dross" with over 96% Zinc content, emphasizes writ jurisdiction under Article 226

The court dismissed the writ petitions, affirming that "Zn-dross" with more than 96% Zinc content is excisable under the amended tariff entry. It upheld the legality of the Orders-in-Original and subsequent appellate decisions, emphasizing the availability of High Court's writ jurisdiction under Article 226 to prevent miscarriage of justice, even when alternative remedies exist. The court distinguished the present case based on the high Zinc content of the product, rejecting reliance on previous judgments and circulars.

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Issues Involved:
1. Delay in filing appeals and jurisdiction to condone delay.
2. Legality of invoking writ jurisdiction under Article 226 of the Constitution of India.
3. Whether "Zn-dross" is excisable goods under Section 2(d) and 2(f) of the Central Excise Act, 1944.
4. Validity of the Orders-in-Original (O-in-O) and the subsequent appellate decisions.

Detailed Analysis:

1. Delay in Filing Appeals and Jurisdiction to Condon Delay:
The petitioners' appeals were dismissed by the Commissioner (Appeals) and the CESTAT due to delays beyond the condonable period of 30 days as per Section 35(1) of the Central Excise Act, 1944. The Commissioner (Appeals) relied on the Supreme Court's decision in *Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur* (2008) 3 SCC 70, which established that delays beyond 30 days cannot be condoned. Consequently, the CESTAT upheld the Commissioner's decision, leading the petitioners to file writ petitions.

2. Legality of Invoking Writ Jurisdiction under Article 226:
The petitioners argued that despite the availability of alternative remedies, the High Court's writ jurisdiction under Article 226 can be invoked to prevent miscarriage of justice. The court affirmed this position, stating that no statute can abridge the High Court's writ jurisdiction. The court cited decisions from the Gujarat High Court in *D.R. Industries Ltd. Vs. Union of India* (2008) 229 E.L.T. 24 (Guj.) and the Punjab and Haryana High Court in *JCB India Ltd. V. Union Of India* (2014) 301 E.L.T 209 P&H, which supported the invocation of writ jurisdiction in extraordinary circumstances.

3. Whether "Zn-dross" is Excisable Goods:
The core issue was whether "Zn-dross," a by-product in the manufacturing of galvanized tubes, is excisable under Section 2(d) and 2(f) of the Central Excise Act, 1944. The petitioners contended that "Zn-dross" is not manufactured or produced by them and hence not excisable, despite being saleable and marketable. They relied on Supreme Court judgments in *Collector of Central Excise, Patna Vs. Tata Iron & Steel Co. Ltd.* (2004) 9 SCC 1 and *Commissioner of Central Excise Vs. Indian Aluminium Co. Ltd.* (2006) 8 SCC 314. However, the court noted that the tariff entry for "Zn-dross" under item 7902-0010 was amended on 28th February 2005, making it excisable if it contains more than 90-92% Zinc. The court found that the "Zn-dross" produced by the petitioners had Zinc content exceeding 96%, making it excisable.

4. Validity of the Orders-in-Original (O-in-O) and Subsequent Appellate Decisions:
The court upheld the Orders-in-Original passed by the Assistant Commissioner, Central Excise, Jamshedpur, which imposed excise duty on "Zn-dross" based on its high Zinc content. The court rejected the petitioners' reliance on the Supreme Court judgments, noting that the facts of the present case, particularly the high Zinc content, distinguished it from the cited cases. The court also dismissed the petitioners' reliance on a circular from the Central Board of Excise and Customs, as the specific pending matter before the Supreme Court was not identified.

Conclusion:
The court dismissed the writ petitions, affirming that "Zn-dross" with more than 96% Zinc content is excisable under the amended tariff entry and upholding the legality of the Orders-in-Original and subsequent appellate decisions. The court emphasized that the writ jurisdiction under Article 226 remains intact despite statutory limitations on condoning delays in appeals.

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