2023 (6) TMI 4

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....nfirmed duty amount of Rs. 23,38,602/- (Rupees Twenty Three Lakhs Thirty Eight Thousand Six Hundred Two only) under Section 11AB of the Central Excise Act, 1944. (iii) I impose a penalty of Rs. 23,38,602/- (Rupees Twenty three Lakhs Thirty Eight Thousand Six Hundred Two Only) on M/s JSW Ltd., under Section 11AC {now 11AC(1)(a)} of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002. (iv) In case M/s JSW Steel Ltd., opt to pay the Central Excise duty as confirmed against sr.no.(i) above alongwith entire interest ordered at sr.no.(ii) within 30 (thirty) days from the date of communication of this order, the amount of penalty liable to be paid by M/S JSW Steel Ltd., under Section 11AC of the Central Excise Act, 1944 shall be 25% (twenty five percent) of the demand confirmed in para (i) above. The 11AC of the said Act shall be available only if the amount of penalty so imposed is also paid within the period of 30(thirty) days from the date of communication of this order. 2.1 Appellants are manufacturer of excisable goods under Chapter 32 & 33 Central Excise Tariff Act 1985, availing Cenvat Credit facility in respect of duty paid on inpu....

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.... recorded in the impugned order and submits that issue needs to be considered in light of following decisions: M/s. BHEL Vs. Commissioner of Central Excise, Trichyreported in 1999 (113) E.L.T. 606 (Tribunal). Commissioner of Customs, Central Excise and Service Tax, Hyderabad-ii Vs Reactive Metals of India Pvt Ltd. [2018-TIOL- 455-CESTAT-Hyd] Adhunik Power Transmission Ltd Vs Commissioner Central Excise & Service Tax, Jamshedpur [2015-TIOL-3095-HCJHARKHAND- CX] 4.1 We have considered the impugned order alongwith the submissions made in the appeal and during the course of arguments. 4.2 Impugned order records as follows for confirming the demand made: 'I have carefully gone through the case records and considered the averments made in the appeal memorandum and also relevant provisions of law relating to subject matters. Present issue to be decided in this case is whether the appellant is liable to pay Central Excise duty on sale of "Mill Scale' falling under Chapter Sub Heading No. 2619.00 of the Central Excise Tariff Act, 1985. It is observed appellant are engaged in the manufacture of excisable goods falling under Chapter 72 and 73 of t....

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....ng', 'Surmounting'. 'Topping' etc. Hon'ble CESTAT in the case of B.H.E.L. vs Collector of Central Excise, Trichy reported in 1999 (113) ELT 606 (Tri-Del) held that: "we find that this mill scale is nothing but a thick layer of oxide formed due to high temperature, as such this mill scale cannot be called as 'waste and scrap' of steel of the type covered by 7204.90. Chapter Heading 26.19 of the Central Excise Tariff specifically includes materials like slag, dross and scaling, and the mill scale generated in the manufacture of seemless steel tubes is nothing different from the scaling covered under this chapter". (Emphasis Supplied). There is no dispute that 'Mill Scale' in the present case are therefore, specifically covered under Chapter Sub Heading No. 2619.00 of the Central Excise Tariff Act, 1985 mentioned above. Duty becomes payable at the effective rate of duty applicable to 'Mill Scale'. Further, the respondent has discussed this issue in detail including about its utility, use and that these products are also exported. The same is therefore, applicable. Since, the 'Mill Scale' are sold by the appellants for consideration, there cannot be any dispute about its m....

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....which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable". (Emphasis Supplied). The explanation was inserted by amendment in the Budget, 2008 / Finance Act, 2008. As per the amended definition of excisable goods, duty becomes payable on the above mentioned goods. It is quite clear from the above definition that 'excisable goods' includes any article, material or substance which is capable of being bought and sold for a consideration. Therefore, to consider any goods as 'excisable goods' it can be any article, material or substance and it should be capable of being bought and sold for a consideration. The same is only clarificatory in nature. The 'Mill Scale' sold by the appellants clearly fulfils this condition. These are specifically covered under Chapter Heading No. 2619.00 of the Central Excise Tariff Act, 1985. Therefore, these are 'excisable goods' and Central Excise duty is required to be paid on them. (10) CBEC vide Circular No. 904/24/2009-CX. dated 28-10-2009 issued under F.No. 17/02/2009-CX on the subject "Clarification regarding excisability of Bagasse, Aluminium/Zinc Dross and other such products ter....

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.... 10 (Bom.)] = 2014-TIOL-2266- HC-MUMCX. 3. We have heard Learned Authorised Representative who has reiterated the Impugned order. 4. It is seen from the decision of the Hon'ble High Court of Bombay in re Hindalco Industries Ltd that dutiability of the impugned goods, which had been held by the Tribunal to be excisable even after the amendment inserting 'Explanation For the purposes of this clause, "goods" includes 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 section 2(d) of Central Excise Act, 1944 with effect from 10th May 2008, did not find favour in the light of several decisions and it was held that '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 imposition of excise duty under Section 3 of the Act, then, we cannot agree w....

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....ibunal takes assistance of a Supreme Court Judgment and concludes that the ratio of any decision can be applied only if the facts are identical. True it is that the Hon'ble Supreme Court holds this way, however, what are those facts and emerging from the record of this case which would enable it to take a different view have not been spelt out by the Tribunal. Even these observations and conclusions would go to show that the Tribunal does not dispute that it is considering the same controversy and in relation to the same aluminium dross, which could be termed as either a byproduct or waste or scrap or rubbish. Once there are twin tests, then, all these observations are of no assistance to the Revenue. The reliance placed by Mr.Sethna on a Judgment in the case of this very Assessee rendered by the Allahabad High Court 2009 (243) ELT 481 (All) =2009-TIOL-786-HC-ALL-CX is entirely misplaced. There the argument was that the Writ Petition has been admitted and therefore, a interim order be passed so as to restrain the Department/Revenue from taking any coercive action against the Petitioner Hindalco Industries Ltd. including seizure and clearance of aluminium dross and skimming etc.....