2018 (10) TMI 825

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....ls namely cinders to Dalmia Refractories without payment of duty who in turn sold the same to various buyers on cost. Department took the view that clearances of cinders are to be subjected to duty at tariff rate. Hence a show cause notice dt. 09.09.2011 was issued to appellants inter alia proposing demand of Central Excise duty of Rs. 1,15,169/- with interest thereon as also imposition of penalty under section11AC of the Central Excise Act,1944. The original authority vide order dt. 07.02.2012 confirmed the proposals in the SCN. In appeal, the Commissioner (Appeals) vide impugned order dt. 25.09.2012 upheld the order of original authority. Hence this appeal. 2. Today when the matter came up for hearing, on behalf of the appellant, Ld. Adv....

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....d. Advocate was made in 2003. However, w.e.f.10.05.2008, the Explanation to Section 2 (d) of Central Excise Act,1944 was brought into effect, as per which "goods" include any article, material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable." In the instant case, the goods are capable of being sold for consideration and hence they are very much marketable goods and exigible to Central Excise duty. 4. Heard both sides and have gone through the facts of the case. 5.1 The effect of the judgment of the Hon'ble Supreme Court in the case of Ahmedabad Electricity Co. Ltd. (supra) once for all settled the issue that cinder is not an excisable product. We find that the Boar....

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....ation is only an amplification only for goods which are "excisable goods". In other words, the said Section 2(d) and its Explanation will obviously not be applicable to goods which are not excisable. As discussed earlier, the effect of Board's circular dt. 18.11.2005 is to accept that Supreme Court's ruling that cinder is non-excisable commodity. That particular circular has not been withdrawn. Hence cinder will continue to be a non-excisable commodity during the period of dispute, notwithstanding subsequent amendment to Section 2(d) ibid w.e.f. 10.05.2008. 5.5 The lower authorities have also placed reliance on Board's subsequent circular dt. 28.10.2009 which gave clarifications on excisability of products termed as waste or residue or ref....

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.... binding on it. That is law declared under Articles 141 of the Constitution of India. That it is rendered in the case of identical issues, controversy and the Assessee makes these Judgments of the Supreme Court all the more binding. Their binding effect is not lost merely because the Tribunal has another occasion to consider the issue or another shade of the same controversy. So long as there are Supreme Court Judgments in the field, we do not see how the Revenue could have proceeded to disregard them. 22. That the Revenue does not wish to abide by them would not mean that the Tribunal is justified in not following them. We find that the attempt made by the Tribunal to hold that what is marketable and satisfies the requirement stipulated....