Custom, Excise & Service Tax Tribunal
M/S Hindalco Industries Ltd vs Commissioner Of Central Excise, ... on 25 September, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeals No. E/165/11, E/1120/12, E/85751 & 87523/13 (Arising out of Orders-in-Original No. Belapur/25-26/Tal/R-III/ COMMR/SLM/10-11 dated 20.10.2010; No. Belapur/92-93/Tal/R-III/ COMMR/KA/12-13 dated 25.3.2013 passed by the Commissioner of Central Excise, Belapur; Order-in-Appeal No. BC/04/BEL/2012-13 dated 19.4.2012 passed by the Commissioner of Central Excise (Appeals), Mumbai-III and Order-in-Appeal No. PVR/271/NGP/2012 dated 31.12.2012 passed by the Commissioner of Central Excise (Appeals), Nagpur). For approval and signature: Honble Shri P.R. Chandrasekharan, Member (Technical) Honble Shri Anil Choudhary, Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s Hindalco Industries Ltd. Appellant Vs. Commissioner of Central Excise, Belapur, Mumbai-III and Nagpur. Respondent Appearance: Shri Gajendra Jain, Advocate for Appellant Shri Navneet, Addl. Commissioner (AR) for Respondent CORAM: SHRI P.R. CHANDRASEKHARAN, MEMBER (TECHNICAL) SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) Date of Hearing: 25.09.2013 Date of Decision: 25.09.2013 ORDER NO. Per: P.R. Chandrasekharan
The appeals are directed against Orders-in-Original No. Belapur/25-26/Tal/R-III/ COMMR/SLM/10-11 dated 20.10.2010; No. Belapur/92-93/Tal/R-III/ COMMR/KA/12-13 dated 25.3.2013 passed by the Commissioner of Central Excise, Belapur; Order-in-Appeal No. BC/04/BEL/2012-13 dated 19.4.2012 passed by the Commissioner of Central Excise (Appeals), Mumbai-III and Order-in-Appeal No. PVR/271/NGP/2012 dated 31.12.2012 passed by the Commissioner of Central Excise (Appeals), Nagpur. Since in all these appeals a common issue is involved, they are being taken up together for consideration and disposal.
2. The appellant is M/s Hindalco Industries Ltd. The appellant manufactures various aluminium products falling under Chapter 76 of the Central Excise Tariff Act, 1985 and during the process of manufacture, aluminium dross and skimmings arise, which they cleared without payment of duty. The department was of the view that aluminium dross and skimming are classifiable under CETH 26204010 of the Central Excise Tariff Act, 1985 and the appellant is liable to discharge the duty liability thereon for the period after 10.5.2008 and accordingly, the demands were confirmed vide the aforesaid orders along with interest thereon and equivalent amount of penalties were also imposed on the appellant under the provisions of Central Excise Act. Aggrieved of the same, the appellant is before us.
3. The learned Counsel for the appellant submits that an identical issue arose before this Tribunal in the case of Bhushan Steel Ltd. Vs. Commissioner of Central Excise 2012 (284) ELT 713 (Tri-Mum) in respect of Zinc Dross, which arose as a by-product during the galvanization of CR coils and the period involved was also post 10.5.2008. This Tribunal after considering the amendment to Section 2(d) of the Central Excise Act, 1944 effective from 10.5.2008, wherein an Explanation was added to state that 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, held that the Zink Dross is not a manufactured product and hence, the same is not liable to excise duty. Accordingly, he pleads for allowing the appeals.
4. The learned Addl. Commissioner (AR) appearing for the Revenue, on the other hand, contends that a Co-ordinate Bench of the Tribunal at New Delhi in the case of KEC International Ltd. Vs. Commissioner of Central Excise, Jaipure-I 2012 (283) ELT 428 (Tri-Del) considered the very same issue and held that as per the Explanation to Section 2(d) of the Central Excise Act, 1944, Zinc Dross and Ash are deemed to be marketable and even as per the HSN Explanatory Notes, Zinc Dross is specifically mentioned as a tradable item and consequently, it was held that Zinc Dross is an excisable product and liable to excise duty and, therefore, the impugned orders be upheld.
5. We have carefully considered the rival submissions.
5.1 We have perused the decisions of this Tribunal in the case of Bhushan Steel Ltd. and KEC International Ltd. (supra). In the Bhushan Steel Ltd. case, this Tribunal has held that notwithstanding the addition of Explanation to Section 2(d) of the Central Excise Act, since the Zinc Dross is not a manufactured product, it cannot be considered as an excisable product and hence, not liable to duty. On the other hand, in the case of KEC International Ltd. (supra), another Bench of this Tribunal has held a contrary view and held that in view of the addition of Explanation to Section 2(d), Zinc Dross is to be deemed as marketable and, therefore, they have to be considered as excisable goods and liable to excise duty. In view of the conflicting decisions to two Benches of this Tribunal, we are of the view that the matter should be placed before a larger Bench of this Tribunal for resolution of the conflicting views.
5.2 Accordingly, we place the following points for consideration by the Larger Bench: -
(a) Whether Aluminium Dross and Skimmings or similar Non-ferrous Metal Dross and Skimmings, which arise in the process of manufacture of aluminium/Non ( ferrous metal products can be considered as a manufactured goods and hence excisable for the period post 10.5.2008 in view of the Explanation added to Section 2(d) of the Central Excise Act, 1944?
Or
(b) Notwithstanding the Explanation to Section 2(d), Aluminium Dross and Skimmings or other Non-ferrous metal dross and Skimmings cannot be considered as manufactured products and hence, not liable to excise duty?
6. The Registry is directed to place the aforesaid reference before the Honble President for constitution of and consideration by the Larger Bench.
(Pronounced in Court)
(Anil Choudhary) (P.R. Chandrasekharan)
Member (Judicial) Member (Technical)
Sinha
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