2025 (5) TMI 845

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....quire payment of Excise Duty or not. 2. The Commissioner(Appeals) has given a detailed finding relying on the Supreme Court's decision in the case of Moti Laminates vs. Collector of Central Excise, Ahmedabad [1995 (76) ELT 241 (SC)], Union of India v. Ahmedabad Electricity Co. Ltd. [2003 (158) ELT 3 (SC)] and Madras High Court's decision in the case of Mettur Thermal Power Stationv. C.B.E. & C, New Delhi [2016 (335) ELT 29 (Mad.)]. The relevant portions of the Order-in-Original is extracted below: "The assessee have cited & relied upon the judgeemnt of Hon'ble Apex Court in the matter of Moti Laminates Pvt.Ltd. vs. Collector of Central Excise, Ahmedabad [1995 (76) E.L.T. 241 (S.C.) wherein it had been held that & to quote: "6. The duty....

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....oods either because they were not produced or manufactured by it or if they had been produced or manufactured they were not marketed or capable of being marketed. (emphasis supplied) Further, in a case relating to excisability of cinder that was also cited by the assessee, the Hon'ble Apex Court had held in Union of India Versus Ahmedabad Electricity Co. Ltd. [2003 (158) E.L.T. 3 (S.C.)] as & to quote: "24 In producing 'cinder', there . is no manufacturing process involved. Coal is simply burnt as fuel to produce steam. Coal is not tampered with, manipulated or transformed into the end product. For purposes of manufacture the raw material should ultimately get a new identity by virtue of the manufactruing process either on its own or i....

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.... Act, 1985 does not have a residuary entry like Entry 68 in the old Tariff. Instead the new Tariff has interpretative notes. Whenever some by-product of a product is sought to be included for taxability it has been so said in the interpretative notes. However, regarding coal their is no interpretative note nor there is anything about cinder. When cinder is derived from coal it could have at best been treated as coal for purposes of entries in the First Schedule to the Tariff Act. But that would not suit the department because coal is exempt from excise duty. The department now describes cinder as "coal ash". But coal ash also falls the test of being manufactured in India. It cannot be subjected to levy of excise duty." End to quote (emphasi....

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....furnace is in this case jointly known as coal ash. Depending upon the source and makeup of the coal being burned, the components of fly ash vary considerably, but all fly ash includes substantial amounts of silicon dioxide (SiO2) (both amorphous and crystalline) and calcium oxide (CaO), both being endemic ingredients in many coal-bearing rock strata.....". 12. First, let us first examine whether the good "fly ash" does involve any manufacturing activity, falls under the purview of excisable good so as to attract levy of excise duty?...... "13. ..............Here, we are concerned with 'fly ash', which is produced during combustion of coal. The difference between 'cinder' and 'fly ash' is that when coal is not burnt fully and leaves pi....