2018 (4) TMI 755

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....suppliers. The impugned order dated 13.02.2017 covered the period February 2011 to August, 2011. 2. We have heard both the sides and perused appeal record. 3. On the first issue we note that the Tribunal in the case of Jai Balaji Industries Ltd. vs. CCE&ST, Raipur vide Final Order No. 54037/2017 dated 19.06.2017 following the decision of Hon'ble Madras High Court in Mettur Thermal Power Station reported as 2017 - TIOL - 237 - HC - MAD - CX held as under: ": 5. With reference to the fly ash emerging during the process of burning in the furnace, we note that this Tribunal in several cases has consistently held that fly ash is in the nature of process waste and no duty will be payable on such goods. An identical issue has come u....

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....roduction of the goods and that leviability of duty is linked to its manufacture or production. Therefore, as propounded by the Supreme Court in a catena of decisions referred to above, the twin tests of manufacture and marketability should be satisfied in order to bring the goods within the ambit of excise duty and failure of even one of the test would render the product not liable for excise duty. In the case on hand, it is clear from the averments of either party and is also not in dispute that „fly ash‟ is a by - product during the production of electricity and is not the main manufactured item. Further, the „fly ash‟ is not a commodity which can be used as such in the manufactured item. Further, the „fly a....