TaxTMI 
TaxTMI 
2012 (12) TMI 426
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....vities - fabrication of tower parts and their galvanization. During the course of galvanization the tower parts are passed through molten zinc and in that process, zinc dross and ash is generated as top layer of the molten zinc, as on coming in the contact with air the top layer of the molten zinc gets oxidized to from zinc oxide. The zinc dross and ash consists of zinc metal and zinc oxide. The period of dispute in this case is from July, 2008 to Jan. 2009 and Feb. 2009 to October, 2009 when the Appellant cleared zinc dross/ash on sale without payment of duty by considering the same as non-excisable. The Department were of the view that since - (a) It is specifically covered by sub-heading no. 26201900 of the Centr....
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..... The penal proceedings against Shri Atul Agarwal were, however, dropped. 1.3 On appeal being filed to the Commissioner of Central Excise (Appeals) against the above order of Addl. Commissioner, the same were dismissed by a common order-in-appeal no. l37-138(DKV)CE/JPR-I/2011 dated 21-4-2011. 1.4 Against the above order of the Commissioner (Appeals), these appeals have been filed along with stay applications. 2. Heard both the sides. Though these matters were listed for hearing of stay applications only, since only a short issue relating to interpretation of the provisions of Central Excise Act, 1944 is involved, with the consent of both the sides, it was decided to hear the appeals for final disposal. Accordingly, the req....
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.... not excisable, that in any case, since the point of dispute relates to interpretation of provisions of Central Excise Act, the imposition of penalty under Section 11AC was not called for and that in view of this, the impugned order is not correct. 4. Shri Nagesh Pathak, ld. Senior Departmental Representative, defending the impugned order pleaded that there is no dispute about the fact that the zinc ash and zinc dross is capable of being sold, as the same was being regularly sold by the appellant, that period of dispute in this case is after the amendment to Section 2(d) w.e.f. 10-5-2008, by which an explanation was added to Section 2(d) which provides that for the purpose of this section, goods includes any article, material or subst....
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....arefully considered the submissions from both the sides and perused the records. There is no dispute about the fact that the zinc dross and ash is being sold by the appellant for a consideration. There is also no dispute that zinc dross and zinc ash is specifically covered by the heading no. 2620 19 00 of Central Excise Tariff. However, for being excisable, the goods not only must be mentioned in the Central Excise Tariff as being chargeable to duty but must also be marketable. The point of dispute in this case is about the criteria of marketability. The Apex Court in the case of CCE v. Tata Iron & Steel Co. Ltd. (supra) has held in clear terms that mere sale of a commodity does not mean it is marketable since even rubbish can be sold and t....
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....We are also of the view that the goods, in question, even on the basis of the criteria in this regard prescribed by the Apex Court in the case of CCE v. Tata Iron and Steel Co. Ltd. have to be treated as marketable, as (a) The fact that the zinc dross and ash is specifically mentioned in the Harmonised System of Nomenclature (HSN) which is an international catalogue of the goods and which are traded in the course of international trade, would show that zinc dross and ash are marketable; and (b) even on the internet, it can be seen that there hundreds of e-commerce websites quoting the price of zinc dross and ash, which is a clear evidence of the fact that, this commodity is known in the trad....