TaxTMI 
TaxTMI 
2017 (12) TMI 1023
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Act, 1985. On 11.01.2012, the Central Excise Officers visited the premises of the appellants and conducted verification of the stock of raw materials and finished goods lying in factory. During such verification, shortage were noticed in respect of some of the finished products such as beams, billets and blooms. Further, it was noticed that certain goods viz; fly ash arising in the course of burning of coal in the furnace as well mill scale which is generated in the course of manufacture of M.S. beams/ channels were being cleared from the factory without payment of duty. The departmental officer recorded the statement of Sh. Kundan Das Vaishnav, A.S. of the appellant in which he admitted the stock shortage and paid duty attributable to su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that the said fly ash is classifiable under Chapter 26 of the Central Excise Tariff and is liable to duty 1% / 5% with the condition that no Cenvat Credit has been availed on input/ input services under Cenvat Credit Rules, 2004. The lower authorities held that the Appellants are liable to payment of duty on the consideration received on sale of such fly ash. We note that the fly ash emerging during the course of generation of electricity cannot be considered as a manufactured product liable to Central Excise duty. In this connection, the observation of the Hon'ble Madras High Court in Mettur Thermal Power Station (supra) is relevant. The Hon'ble High Court recorded as below: "24. From the above judgment of the Supreme Court, it is clear....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arketability. The twin tests have to be satisfied in order to bring a product within the ambit of excise duty and satisfaction of solitary test alone would not be sufficient to levy excise duty on the commodity. Therefore, mere marketability of the product alone would not be suffice to levy duty on the "fly ash", there being no manufacturing process involved." 6. The dispute in the present case is squarely covered by the findings of the Hon'ble High Court, as above. Accordingly, we find no merit in the impugned order and set aside the same". 6. By following our earlier decision (supra) and considering the facts and circumstances of the case, we set aside the demand on fly ash. 7. Next we consider the duty demand raised on mill scale -....