TaxTMI 
TaxTMI 
2018 (12) TMI 1030
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....y 2008 to August 2010. 2.1 Brief facts are that the appellants are manufacturers of Refractory Bricks, Fireclay Bricks, Mortar, Castables and Cinders falling under Chapter 69022020, 69029010, 38180000, 69039040 and 26219000 of the First Schedule to the Central Excise Tariff Act, 2005. During the course of manufacture of Refractory Bricks, Cinders are obtained as by-products which are subsequently cleared to the appellant's customers as per their directions. 2.2 During the course of Audit of Accounts by the Internal Audit Group, Headquarters, Trichy, it was noticed by the Officers that the appellant had cleared cinders to the supplier of raw materials viz., M/s. Dalmia Refractories, Dalmiapuram, without payment of duty on the ground that t....
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....on behalf of the Revenue-respondent. 4.1 During the course of hearing, Ld. Advocate for the assessee submitted that the Hon'ble Supreme Court in the above said judgement has elaborately discussed the dutiability of the cinders and the same does not dwell into the marketability of the said product; it only holds that cinders were not a product manufactured within the meaning of Section 3 of the Central Excise Act. She submitted that marketability or otherwise has no bearing on the levy of duty on such cinders either and that therefore the insertion of Explanation to Section 2(d) would not alter the situation whatsoever. 4.2 Ld. Advocate further submitted that the issue involved in this case has already been considered and settled by this v....
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....ts entirety, it stands to reason that the Board has withdrawn from its earlier decision that cinder is an excisable commodity. 5.3 The import of the said Supreme Court judgment and the Board's circular dt.18.11.2005 will then only mean that cinder is to be considered only as a non-excisable commodity. 5.4 Both the lower authorities have placed reliance on the amendment to Section 2(d) of the Central Excise Act, 1944 w.e.f. 10.05.2008 by way of addition of Explanation. We find that the amended section 2(d) as it stood w.e.f. 10.05.2008 is as under : "Section 2(d) - "excisable goods" means goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act,1985 as being subject to a duty of excise and include....
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....f Grasim Industries Ltd. Vs UOI - 2011 (273) E.L.T. 10 (S.C.), held that the order of the Tribunal holding that dross and skimming of Aluminium, Zinc and other non-ferrous metal arising as by-products during manufacture and sold by assessee, was manufactured goods after 10-5-2008 was contrary to the aforesaid judgment of the Apex Court. The relevant portions of the order are reproduced as under: "21. We do not see how, in the light of these authoritative pronouncements of the Hon'ble Supreme Court, can the Tribunal take a different view. When the Hon'ble Supreme Court holds and as in Grasim Industries Ltd. (supra) that the conditions contemplated under Section 2(d) and Section 2(f) have to be satisfied conjunctively in order to entail im....
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....whole purpose of making these observations is to justify the conclusion that because there is a reference to these items in the Tariff Entry or the Tariff Schedule that would change the colour of the controversy. That would enable the Tribunal to then hold that the earlier Judgments and in the case of this very Assessee are no longer good law. However, we do not see how the decision in the case of Grasim Industries Ltd. (supra) and particularly the above reproduced paragraphs could have been brushed aside by the Tribunal. The Hon'ble Supreme Court listed the twin tests and which have to be satisfied before the goods can be said to be excisable to tax or Central Excise duty. It is in these circumstances that the attempt of the Tribunal and w....