JUDGMENT

Arun Kumar, J.

The question which arises for consideration in this bunch of appeals is regarding exigibility of cinder to excise duty. The respondents in all the appeals use coal as fuel for producing steam to run the machines used to their factories to manufacture the end product. Coal is burnt in the boilers or furnaces for producing steam. Normally coal when it is burnt in boilers is reduced to ash. Some part of coal does not get fully burnt because of its low combustible quality. This unburnt or half burnt portion of coal is left out in the boilers. It is called cinder. Though the respondents are engaged in manufacturing different end products, one thing is common between them and that is that they all use coal as a fuel.

2. The First Schedule to the Central Excise Tariff Act contains various entries which is a list of excisable goods. The list also gives rates of duty leviable on the respective items. Clinder is not mentioned in any of the entries to the First Schedule Chapter 26 of the Schedule contains an entry at Serial No. 26.21 which is as under.

"Other slag and ash, including seaweed ash (kelp) — 8 "

3. The Revenue seeks to cover cinder under the said entry to make it subject to levy of excise duty. The respondents have resisted this claim of the Revenue. This has led to the present litigation. The learned Additional Solicitor General appearing for the Union of India, i.e. the Central Excise Department, raised following points in support of the stand of the Department that cinder is liable to be subjected to levy of excise duty :

1) In view of the Entry No. 26.21 in the Central Excise Tariff Act cinder is per se exigible to excise duty as it is covered under an entry in the First Schedule to the Tariff Act. According to him, the fact that an item finds mention in the Schedule to the Tariff Act per se becomes excisable. The said Schedule contains a list of excisable goods and all items in the Schedule are liable to payment of excise duty.

2) Section 3 of the Central Excise and Salt Act is the charging Section from which the twin test of excisable goods being manufactured in India and capable of being marketable emerge. According to the learned ASG both the tests and satisfied in the present case. It is argued that cinder is a by-product of coal which emerges in the course of manufacture of the end product. Cinder is sold by the various assessees from their factories. Therefore, it is marketable. Thus both the tests are satisfied.

3) The question involved in the present appeals is more a question of fact which the High Court should not have entertained in a petition under Article 226 of the Constitution of India.

Apart from the above points urged on behalf of the Revenue, some points emerge from the contentions raised by the learned counsel appearing for the assessees. They are :

In the statutory appeals filed by the Revenue against the judgment of the Customs Excise & Gold (Control) Appellate Tribunal in the case of the Tata Iron and Steel Company (C.A. No. 4051/2003), it has been argued that the show cause notice issued by the departmental authorities was beyond time. Section 11A of the Central Excise Act which allows an extended period of limitation for issue of Show Cause Notice could not be invoked in the facts of the case because all necessary facts were beingdisclosed regularly by the Company to the Revenue authorities and there was no concealment or suppression or misrepresentation . Therefore, the show cause notice being highly belated was liable to be quashed.

Another point raised in the Tata Iron Companys case is that clinder is a waste emerging from coal and the Company was spending much more on its removal from the site as compared to what it was getting from its sale. This point has been raised in some other cases also. This is a point which would arise on the facts of particular cases. Proper pleadings have to be there. The Tribunal being the fact finding body ought to have adverted to it. Unfortunatel