ORDER
G.P. Agarwal, Member (J)
1. Being aggrieved with the impugned order-in-appeal passed by the Collector of Central Excise (Appeals), Madras, holding that Carbide Sludge is not an excisable goods, the Revenue has filed the present appeal.
2. Appearing on behalf of the Revenue appellant, Shri A.K. Madan, learned SDR, submitted that the respondents are manufacturer of Acetylene Gas by utilizing Calcium Carbide as raw material. During the manufacture of Acetylene Gas, they obtained Calcium Carbide Sludge and it was found that the respondents regularly from April, 1985 to December, 1987 sold the said Calcium Carbide Sludge on payment of Excise Duty (with the exception of only three months where there was no clearances). Referring to the case of Collector of Central Excise, Guntur v. Andhra Oxygen (P) Ltd. 1987 (30) E.L.T. 967, he submitted that in the said case the question was, as to whether the Carbide Sludge arising in the course of manufacture of Acetylene Gas is excisable goods or not, and the Tribunal has held that it is not excisable goods, however, observing that it would be open to Revenue to prove by creditable evidence, if that be available that Carbide Sludge is goods as per tests laid down by law and this decision would not act as a fetter should such evidence be available. He also submitted that the said case of Andhra Oxygen (P) Ltd. supra, was under the old Tariff, whereas the present cases is under the new Tariff. In reply, Shri K. Lakshmi Narayan, learned Counsel for the respondents, submitted that the said question was again considered by this Tribunal in the case of Asiatic Oxygen Ltd. and Ors. v. Collector of Central Excise, by a Bench of learned three Members reported in 1989 (44) E.L.T. 718, and after referring to the entire law on the point and the observations made by this Tribunal in the case of Andhra Oxygen (P) Ltd., supra, it was found that the Carbide Sludge is not an excisable goods for the purpose of the Central Excises and Salt Act, 1944.
3. We have considered the submissions. This Tribunal after taking into consideration the observations made in the case of Collector of Central Excise, Guntur v. Andhra Oxygen (P) Ltd., supra, again considered the question, as to whether the Carbide Sludge is an excisable goods within the meaning of the Act, and after considering the entire case law on the point, ultimately held that Carbide Sludge is not an excisable goods within the meaning of the Act. While holding so, the fact that the Carbide Sludge was sold at time was also considered. For ready reference, the relevant portion of the said judgment may be reproduced herein with advantage :
“14. In case of both the assessees produced hereby carbide sludge is formed, is common, and the process whereof, it emerge is not in dispute. On perusal of the time, it can be seen that the assessees do not undertake to produce this commodity, but a emerges in the process of manufacture of products which the assessees are licensed to produce and in fact they do produce, namely, Oxygen and acetylene gas. The process is such that emergence of carbide sludge at the end of the process, cannot be avoided. In the case of Asiatic Oxygen, the Revenue has produced some evidence to show that the assessee has at times, sold some of this sludge. Against this, it is the conclusion of the licensee that they have to vacate the pits wherein this sludge if gathered for collection of sludge formation of which is continuous in excess and or that purpose they have hired contractors and they do not charge anything to the contractors to the sludge and the contractors do not pay the charges but they claim supervision charges from the contractors. Then such heaps of sludge cannot be measured, weighed or revised accounted for. Assuming that the assessee charges something to the contractor, then also it almost negligible. In case of Bansal Industries, the adjudicating authority has found that for some years, the assessee has sold this sludge to some person who purchased it for using in brick manufacture and substitute for lime. There also the price charged as negligible. Assuming that the carbide sludge does fetch some price then also that by itself will not be a criteria to bring sludge into not of excise.”
4. In view of the above, we uphold the impugned Order-in-Appeal and consequently reject the appeal with consequential relief to the respondents, if any, according to law, cross objection filed by the respondents also stands disposed of accordingly.