AI Drafter 
TaxTMI 
TaxTMI 
2018 (12) TMI 1469
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....oral submissions made at the time of personal hearing. The issue placed before me is limited to to the valuation of scrap. The appellants have pleaded issue of valuation before the lower adjudicating authority as reflected from the impugned order. It was contended that: "Shri Gavande stated that the company was paying duty on the scrap for its actual cost of sale and actual quantity cleared. They further stated that department contention are considering cost of scrap equal to tissue paper cost was wrong and that the presumption of 1% generation of scrap of the total quantity of scrap was wrong as it comes to 0.137% approximately. He argued that there was no question of percentage of generated scrap as they were paying duty on actua....
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....ve worked out the waste generated as 0.2% department contended it to be 1%. Seven Show Cause Notices as detailed below have been issued to them and adjudicated confirming the demand as indicated. Show Cause Notice No Date Period Duty' Rs C.Ex R-III/VML/SCN/2002 29.04.2004 Apr03- Dec03 4679.56 C.Ex R-III/VML/SCN/2002 02.12.2004 Jan04- Sep04 3052.71 C.Ex R-III /W-1/VML/SCN/2002 10.06.2005 Oct04- Mar05 1837.24 C.Ex R-III /W-1/VML/SCN/2002 25.04.2006 Apr05- Mar06 4971.85 C.Ex R-III /W-1/VML/SCN/2002 16.04.2007 Apr06- Mar07 5351.06 C.Ex R-III /W-1/VML/SCN/2002 02.05.2008 Oct07- Mar08 3385.62 C.Ex R-III /W-1/VML/SCN/2002 31.01.2009 Apr08- Dec08 4033.68....
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.... limited to that extent. vi. No penalty or Interest can be imposed on them. 4.1 We have heard Shri S R Nair Learned Advocate for the Appellants and Shri Deepak S Chavan, Superintendent Authorized Representative for the revenue. 4.2 Arguing for the Appellants learned Advocate submitted i. The orders of the lower authorities do not specify the classification of the waste. Demand of duty without specifying the classification is bad in law. ii. The waste in question is not marketable and hence cannot be subjected to duty. {Grasim Industries Ltd [2011(273) ELT 10 (SC)], Elphinstone Metal Rolling Mills {2004 (167) ELT 481 (SC)], Universals Offsets 2018 (10) GSTL 386 (T-Del)]} iii. In their own case issue has been decided by the ....
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....ctual cleared by them. When they have paid the duty on the waste cleared by them, and range officer has determined that actual waste generated was only 0.027%, then where is question of any further demand being made by arriving at imaginary percentage of waste generation as 1% or 0.137%. 5.3 Appellants have themselves, classified and paid the duty on the waste cleared by them. The goods cleared by them were actually marketed or sold by them and they have paid duty on the actual transaction value in respect of these sale. Once having accepted that the goods were marketed by them the appellants could have not claimed in any subsequent proceedings that department has not established the marketability of the said goods or classification of t....
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....ketable as it was highly unstable." The test, therefore, is the "marketability"; this test has to be applied and the matter decided in a pragmatic and practical sense. 10.It would be evident from the facts and ratio of the above decisions that the goods in each case were found to be not marketable. Whether it is refined oil (non-deodorised) concerned in Delhi Cloth and General Mills, or kiln gas in South Bihar Sugar Mills, or aluminium cans with rough uneven surface in Union Carbide, or PVC films in Bhor Industries or hydrolysate in Ambalal Sarabhai, the finding in each case on the basis of the material before the court was that the articles in question were not marketable and were not known to the market as such. The "marketabilit....