2009 (9) TMI 152

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....r hearing on 21-10-2009. 3. Shri V.B. Upadhyay, has pressed for interim orders. 4. By this writ petition, the petitioner has prayed for quashing the letters/orders dated 18-8-2009 and 27-8-2009 sent by Superintendent of Central Excise, Range-1, Renukoot, District Sonebhadra, and for a writ of mandamus restraining the respondents from taking any coercive action against the petitioner and its staff including seizure and clearance of 'Aluminium Dross and Skimming' etc. in pursuance to the impugned letter/orders dated 18-8-2009 and 27-8-2009. 5. It is submitted that the central excise is leviable on "goods" produced and manufactured. The goods so produced, in addition must satisfy the test of marketability. The goods cannot be subjecte....

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....cise, Range-I, Renukoot, District Sonebhadra had discussions with the representatives of the petitioner and has communicated to the petitioner that in view of the explanation added to Section 2(d) of the Central Excise Act, 1944 w.e.f. 10-5-2008, the 'Aluminium Dross and Skimming,' specifically mentioned at Tariff Heading 2620 40 10 of the Central Excise Tariff Act, 1985, has become 'excisable goods' and in the light of the findings, the petitioner has been requested not to clear the 'Aluminium Dross and Skimming,' without proper invoicing indicating duty payable etc. as per set process and procedure for clearance after 19-8-2009. 9. Shri V.B. Upadhyay submits that the insertion of the explanation to Section 2(d) of the Central Excises a....

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....mmissioner, Central Excise v. Indian Aluminium Co. Ltd. 2006 (203) E.L.T. 3 (S.C.). The petitioner has also not denied the facts given in the notice dated 27-8-2009, that the 'Aluminium Dross and Skimming' contains high percentage of aluminium up to 60% and that in the month July-2009, alone it was found to be approximately valued at Rs. 22,025.00 to Rs. 39,025.00 PMT, with regularity of clearances at more than 50 times, confirming its marketability and excisability. 11. Prima facie, we find that the insertion of the explanation under Section 2(d) providing for a fiction in law by a deeming clause in definition of "goods" to include any article, material or substance which is capable of being bought and sold for a consideration, and to t....