CGST & CE, Jabalpur. Versus M/s. Jaypee Nigrie Super Thermal Power Project
Central Excise
2019 (2) TMI 554 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 9-1-2019
Excise Appeal No. 52818 of 2018 – FINAL ORDER No. 50099/2019
Central Excise
Mr. C L Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial)
Shri R K Mishra, AR for the Appellants
Shri Anurag Kapur, Advocate for the Respondent
ORDER
Per C L Mahar:
Brief facts of the matter are that the respondent-assessee are engaged in manufacture of electricity falling under Chapter sub heading 2716 of Central Excise Tariff Act, 1985. During the course of electricity generation, coal is used as a fuel for generation of electricity. During the process of combustion of coal, results in generation of 'fly ash' as a residual waste which rises up in the air and same is trapped thereafter for protection of the environment. The resultant residual waste namely, 'fly ash' is collected and cleared by the re
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ed 28.3.2017 wherein all the charges of the show cause notice have been confirmed by the learned adjudicating authority. The party has approached the Commissioner (Appeals) against the Order-in-Original and the Commissioner (Appeals) vide impugned Order-in-Appeal No. BHO-EXCUS-001-APP-381-17-18 dated 27.10.2017 has allowed the appeal of the respondent-assessee. The learned Commissioner (Appeals) has primarily decided the issue following the judgment of Hon'ble Supreme Court in the case of Union of India vs. DSCL Sugar Ltd. [2015 (322) ELT 769 (SC)]. The department is before us against the impugned Order-in-Appeal on the ground that the Commissioner (Appeals) has gravely erred in applying the ratio of Hon'ble Apex Court decision in the case of Union of India vs. DSCL Sugar Ltd.(supra) saying that the said decision was delivered in the context of excisability of the Bagasse wherein the process of manufacture of sugar results from crushing of sugarcane which results in sugarcane juice and
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se Act, Central Excise duty cannot be levied on such residual product. This submission is in line with the observations made by the Hon'ble Supreme Court in the case of Union of India vs. Ahmedabad Electricity Co. Ltd. [ 2003 (158) ELY 3 (SC) where issue was regarding excisability of Cinder which is unburnt/ partly burnt pieces of coal not capable of producing flame and Hon'ble Supreme Court has held that the undue cannot be termed as a manufactured product.
4. An identical situation as in the present case, came up for consideration before the Hon'ble Madras High Court in the case of CBEC vs. Mettur Theramal Power Station [2017 (349) ELT 708 (Mad) where duty demand was raised against the assessee engaged in the generation of electricity, for clearing fly ash (emerged during combustion of coal for generation of electricity) without payment of duty on the ground that duty is chargeable on such product wef 01.03.2011.
5. The Hon'ble High Court held that before delving into the question
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that the matter is no longer res integra as it has already been decided by Hon'ble High Court of Madras in the case of Mettur Thermal Power Station vs. CBE & C New Delhi [2016 (335) ELT 29 (Mad)]. Relevant extract of the same are reproduced hereinbelow:
“24. It is not in dispute that 'electricity' has been specified in the First Schedule of the Central Excise Tariff under Heading 2716 00 00, but it is not subjected to a duty of excise since under the 'rate column' the duty of excise is indicated as 'nil'. Merely, rate of duty is mentioned 'nil', it cannot be construed that it is non-excisable good. In “CCE, Hyderabad v. Vazir Sultan Tobacco Co. Ltd., reported in (1996) 3 SCC 434 = 1996 (83) E.L.T. 3 (S.C.), the Hon'ble Supreme Court has held that though by virtue of an exemption notification, the rate of duty was nil, this does not mean that they were not excisable goods. They were excisable goods. Nil rate of duty is also a rate of duty. Therefore, electricity is excisable good and c
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