TaxTMI 
TaxTMI 
2019 (2) TMI 554
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.... combustion of coal, results in generation of 'fly ash' as a residual waste which rises up in the air and same is trapped thereafter for protection of the environment. The resultant residual waste namely, 'fly ash' is collected and cleared by the respondent-assessee for use in the manufacture of certain other products and same is cleared without payment of duty after claiming exemption benefit under notification No. 89/95-CE dated 18.5.95 during the relevant period between October, 2014 to June, 2016. 2. It has been the contention of the department that 'fly ash' being a manufactured product and at the same time being marketable as same are being purchased by the manufacturers of cement and fly ash bricks, same is classifiable under Chapte....
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....Bagasse. Since in this case, the issue pertains to the generation of 'fly ash' which arises under different circumstances and different manufacturing process, therefore, the Commissioner (Appeals) has been wrong in applying the ratio of above decision. 3. Learned Advocate appearing on behalf of the respondent assessee has vehemently defended the order of Commissioner (Appeals) who has held that though it is undisputed fact that fly ash emerges as a residual substance during the combustion of coal as a fuel to produce steam for generation of electricity. Coal is not tampered with, manipulated or transformed into any end product; the same is burnt to produce steam which is used for generation of electricity. Thus, it is submitted that fly as....
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....urther, it was held that merely because there is a specific or residue entry for such product thereby satisfying the test of marketability, the said product cannot be termed as an excisable commodity for not satisfying the test of manufacture; marketability of a product alone is not sufficient for levy of duty. 6. Thus, the emphasis laid by the department in its appeal upon explanation to Section 2(d) of the Excise Act, on the aspect of marketability to bring fly ash within the ambit of "excisable goods", alone is not sufficient and such argument is not legally sustainable. 7. We have also heard the learned Departmental Representative who has reiterated the grounds given in the appeal. 8. Having heard both the sides, we are of the view t....