2004 (97) ECC 38 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

East Regional Bench -- Kolkata

Shri V.K. Jain, Member (T) and Shri M.P. Bohra, Member (J)

Tata Iron & Steel Co. Ltd.

Versus

Commr. of Customs, Jsr.

Appeal No. CDM-199/03

[Arising out of Order-in-Original No. 39/Commr./2003 dated 29.7.2003 passed by Commr. of Customs & Central Excise, Jsr.]

Order No. A-405/KOL/2004, dt. 22.6.2004, Certified on 2.7.2004

Duty demand (C. Excise)

Limitation -- Dross and skimming which is a by-product during galvanisation of steel sheets, is not excisable. There is no suppression or wilful misstatement of the facts on the part of the appellants. The extended period of limitation cannot be invoked.

[Para 5]

PRESENT :

S/Shri D.K. Dhar and A. Dutta, Advs. for the appellant.

Shri J.R. Madhiam, JDR for the respondent.

Cases Cited :

1. Collector of Central Excise, Patna v. Tata Iron & Steel Co. Ltd., 2004 (92) ECC 257 (SC) [Paras 2, 4]

2. IISCO Ltd. v. Commr. Central Excise, Bolpur, 2003 (151) ELT 91 (Tri.-Kolkata).. [Para 4]

Per : M.P. Bohra

We have heard Shri D.K. Dhar, Ld. Advocate and Shri Anirban Dutta, Ld. Advocate for the appellants. We have also heard Shri J.R. Madhiam, Ld. JDR for the respondents.

2. Ld. Advocate for the appellants submits that in the present appeal, the demand has been raised by invoking entended period of limitation and also on the product which is not excisable. He submits that the Hon'ble Apex Court in the case of Collector of Central Excise, Patna v. Tata Iron & Steel Co. Ltd., 2004 (165) ELT 386 (SC), has held that dross and skimming are not excisable. They are arising as by-product during galvanisation of steel sheets and not excisable goods. He submits that in view of the above decision, the appeal may kindly be accepted and the Order-in-Original of the Commissioner of Central Excise, Jamshedpur dated 29th July, 2003, be set aside.

3. Ld. LDR, Shri J.R. Madhiam, reiterates the findings to the Commissioner and submits that the appeal may kindly be dismissed.

4. In the present case, the demand of duty was in respect of the period from April 1999 to February 2000 for which the notice to show cause was issued on November 11, 2002 i.e. beyond the period of limitation. In the present case, the appellants filed classification lists effective from May 1, 1987. Subsequently, the appellants filed revised classification lists under Heading 26.20 and 26.21 and the Ld. Commissioner held that the said goods were classifiable under Heading 26.20. After amendment of Rule 173B, the appellants filed declaration classifying the said goods under Heading 26.20. Ld. Assistant Commissioner after considering all relevant facts held that the said goods were classifiable under Chapter Heading 26.20 and 26.21 and thereafter, there was not change in the process of galvanising. Thus it is clear that there was no suppression or wilful mis-statement of facts, on which the extended period of limitation can be invoked. Similar view was taken by this Tribunal in the case of M/s IISCO Ltd. v. Commr. Central Excise, Bolpur, 2003 (151) ELT 91 (Tri.-Kolkata).The Hon'ble Apex Court in the case of Collector of Central Excise, Patna v. Tata Iron & Steel Co. Ltd., 2004 (92) ECC 257 (SC) : 2004 (165) ELT 386 (SC) has held as under :

"Dross and skimmings -- Excisability of Zinc dross, flux skimming and zinc scallings arising as by-product during galvanisation of steel sheets, not excisable commodity as even rubbish can be sold -- Everything which is sold is not necessarily a marketable commodity known to commerce and which, it may be worthwhile to trade in -- Sections 2 (d) and 3 of Central Excise Act, 1944.

Marketability -- Mere selling of a commodity does not mean it is marketable since a commodity can also be sold as rubbish -- Marketability means selling of a commodity known to the a commerce and which may be worthwhile to trade in Section 3 of Central Excise Act, 1944."

5. From the above discussions, it is clear that dross and skimming which is a by-product during galvanisation of steel sheets, is not excisable. There is no suppression or wilful misstatement of the facts on the part of the appellants. The extended period of limitation cannot be invoked. In view of the above, the appeal deserves to be allowed.

6. Consequently, after setting aside the impugned order, we allow the appeal with consequential relief to the appellants.

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