JUDGMENT
V.K. Agrawal
1. The issue involved in this appeal filed by M/s Kesoram Rayon is whether Cinder which remains after cool has been burnt in the boiler is chargeable to excise duty.
2. Shri J.P.Khasditna, learned Advocate, submitted that cinder obtained by them in their boiler is of no use to the appellant and is to be disposed of from the factory premises to maintain the pollution level that fact they have to pay from their pocket to the transport carriers for removing cinder from the factory; that the Gujarat High Court in the case f Ahmedabad Electricity Co. Ltd. v. U.O.I., 2001 (131) ELT 535 (Guj.) has held that cinder is not excisable goods produced on manufactured within the meaning of “other ash” in sub-heading 26.21 of the Schedule to the C.E.T.A. He finally mentioned that in the following cases the Tribunal has taken the same view, following the Gujarat High Court decision:
i) Shaw Wallace Gelatines Limited v. C.C.E., Indore – 2001 (44) RLT 241 (CEGAT – Delhi)
ii) Smithkline Beecham Consumer Health Care Ltd. v. C.C.E., Chandigarh – 2001 (44) RLT 843 (GEGAT – Del.)
3. Countering the submissions Shri A.K.Mondal, learned DR submitted that the Gujarat High Court gave the decision as the High Curt found that Circular and Trade Notice were illegal; that cinder has been exempted from excise duty under Notification No. 76/86 which was amended by Notification No.11/96 dated 23.7.96 which goes to show its excitability.
4. We have considered the submissions of both the sides. The issue regarding excitability of cinder is no more res integra in view of the decision of the Gujarat High Court in the case of Ahmedabad Electricity Co. Ltd. and the Tribunal’s decisions relied upon by the learned Advocate. Hon’ble High Court held that coal cinder was not a manufactured product, though it might be marketable. The High Court categorically held that cinder is not excisable. Following the ratio of this decision, we set aside the impugned order and allow the appeal.