TaxTMI 
TaxTMI 
2005 (5) TMI 435
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...., Ahmedabad the officers of the Directorate General of Anti-Evasion found that one unit in the name of M/s. Baheti Metal & Ferro Alloys was paying Central Excise duty on Ferro Alloys since 25-7-91. On enquiry it was found that prior to this they were availing exemption from the whole of Central Excise duty under Notification No. 174/88, dated 13-5-88. The appellants were, therefore asked to produce the documents for purchase of aluminium scrap during the period from 1-4-89 to 24-7-91. On examination of the records and conducting the investigation by recording the statements of the concerned persons, it was found that the appellants were not entitled for exemption under Notification No. 167/86, dated 1-3-86 and Notification No. 217/86, dated....
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....sed on the definition of powder as given in the tariff but are based on common parlance. The Supreme Court in case of Collector of Central Excise, Hyderabad v. Fenoplast Pvt. Ltd. - 1994 (72) E.L.T. 513 (S.C.) has observed that - "If any term or expression has been defined in the enactment, then it must be understood in the sense in which it is defined, but in the absence of any definition being given in the enactment, the meaning of term in common parlance or in commercial parlance has to be adopted." Since in the present case, the definition of "powder" is given in the Tariff, therefore, anything beyond the definition cannot be considered as aluminium powder. The process of manufacture of aluminium granules along with list of machin....
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....s neither granule nor powder nor flakes, therefore, it cannot be classified under Heading 76.03 and they are not liable to pay any duty." 4. He also pleaded that aluminium powder/granule manufactured by appellants is not marketable as it arises at the intermediate stage during the manufacture of ferro alloys. They were using this for captive consumption. The powder which is available for use at this stage is not a marketable Commodity. It is for the department to show that the product is marketable. He relied on the decision of the Supreme Court in case of CCE, Chandigarh v. Metro Tyres Ltd. - 2005 (181) E.L.T. 176 (S.C.) wherein in Para 6 of the said decision it was held that burden to show marketability is on the department. 5.....
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....er Encyclopaedia of Metallurgy and Materials by C.R. Tottle flake is explained as "minute transverse internal fissures formed during the pulling of forged or wrought alloy steels and sometimes in carbon-steels. They occur most frequently in large forgings and appear on fractured surfaces as small white specks resembling snowflakes. They can be eliminated by retarding the cooling of the forgings down to temperatures below 100°C. It is believed they may be due to dissolved hydrogen. Also known as hair line cracks, snow flakes and chrom checks. In America where the defeors have been found in the heads of rail, they are referred to as shatter cracks". After seeing these meanings he could not establish that disputed aluminium are flakes. He,....
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....n the tariff. We have to see whether the product manufactured by the appellants falls within the definition under Note 6(b) of Section XV of tariff which explains powders as products of which 90% or more by weight passes through a sieve having a mesh aperture of 1 mm. Thus, from the statutory definition of powder it is clear that only those particles 90% of which pass through sieve having a mesh aperture of 1 mm can be considered as powder. The other even though they may be in powder form but of bigger size particles cannot be considered as powder. We find that the entire case of the department is that the appellants were manufacturing powder/granules. However, the department has not produced any evidence by which it can be inferred that al....