Decided on January 20,2015

Maa Laxmi Steel (Pvt.) Ltd. Appellant
Commr. Of C. Ex. , Cus. And S.T., Bbsr -Ii Respondents


DR.D.M.MISRA, J. - (1.)THIS is an application seeking waiver of pre -deposit of duty of Rs. 25.72 lakhs and equal amount of penalty imposed under Section 11AC of the Central Excise Act, 1944.
(2.)At the outset Shri K. Kurmy, ld. Advocate for the applicant submits that demand has been confirmed against them for clearance of Silico Manganese slag for the period of 2005 -2006 to 2006 -2007 proposing its classification under Chapter sub -heading 2620 99 00 of CETA, 1985. His submission is that the said product emerges during the course of manufacture of Silico Manganese, is a refuse/residue and cannot come under the scope of proposed Tariff sub -heading 2620 99 00 as the same does not satisfy the Chapter Note 3 of Chapter 26 of CETA, 1985. He submits that it is not used as a kind in industry for the manufacture of chemical compound of metals, etc., hence its classification under the said sub -heading is incorrect. He submits that the provisions of amended Section 2(d) of Central Excise Act, 1944 would not be applicable to the present case as the period involved in the present case is earlier to the said amendment. Further, he submits that the refuse/residue which has been generated during the course of manufacture of finished product, namely, Silico Manganese, cannot be treated as excisable goods in view of the judgment of the Hon'ble Supreme Court in the case of UOI v. Indian Aluminium Co. Ltd. - : 1995 (77) E.L.T. 268 (S.C.) even if the said refuse/residue is sold in the market. Also he submits that the company has incurred an accumulated loss of Rs. 4.48 crores in the previous financial year.
The ld. AR for the Revenue reiterated the findings of the ld. Commissioner (Appeals).

(3.)HEARD both sides and perused the record. Prima facie we find that the Silico Manganese slag which emerges during the course of manufacture of the final product namely Silico Manganese was proposed to be classified under 2620 99 00 of CETA, 1985. Prima facie, we find force in the submission of the ld. Advocate for the applicant that in view of the Chapter Note 3 of Chapter 26 of the CETA, 1985, the refuse/residue, namely, Silico Manganese slag which are not used for the purpose of extraction of metal or chemical compound would not fall under the scope of the said Tariff Entry. Also, we find that the present demand pertains to the period prior to the amendment of Section 2(d) of Central Excise Act, 1944. In the result, the applicant could able to make out a prima facie case for waiver of pre -deposit of dues adjudged. Accordingly, all dues adjudged is waived and its recovery stayed during the pendency of the appeal. Stay Petition allowed.

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