These applications filed by the appellant seek waiver of pre-deposit and stay of recovery in respect of the respective adjudged dues.

After hearing both sides, I find that the appellant is engaged in the manufacture of sugar from sugar cane and that, in the process of manufacture, bagasse is generated as waste. In the manufacturing unit covered by the first appeal, bagasse is disposed of by sale. In the other manufacturing unit covered by the second appeal, it is captively consumed as a fuel for generation of electricity. It is further noted that the second unit reversed the entire amount of CENVAT credit. It is claimed by the learned counsel that this reversal was made under protest, while it is submitted by the learned Superintendent (AR) that there is nothing on record to indicate that the reversal of credit was under protest. Be that as it may, reversal of CENVAT credit of Rs. 3,35,806/- by the appellant is not in dispute in the second appeal. In the first appeal, where there is no reversal of CENVAT credit, the learned counsel has claimed prima facie case on the strength of the Tribunal's decision in Commissioner of Central Excise, Meerut v. Shakumbari Sugar & Allied Industries [2004 (176) E.L.T. 819 (Tri.-Del.)] upheld by the Hon'ble Supreme Court by dismissing Civil Appeal No. 4043/2004 vide Commissioner v. Shakumbari Sugar & Allied Industries Ltd. [2005 (189) E.L.T. A62 (S.C.)]. The learned Superintendent (AR) expresses the view that the above decision may not hold good after the insertion of explanation to the definition of "excisable goods" under Section 2(d) of the Central Excise Act.

2. After considering the submissions, prima facie, there is no point in the objections raised by the learned Superintendent (AR) as the explanation referred to by him has a bearing on marketability only. It says that "goods" include any article, material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable. The bagasse generated in the course of manufacture of sugar by the first unit was disposed of by sale for a consideration and, therefore, (it is argued) the commodity should be deemed to be marketable and hence excisable. Yet another submission made by the learned Superintendent (AR) is that bagasse figures by name in the 1st Schedule to the Central Excise Tariff Act and hence should be held to be excisable. Marketability is not the only criterion for determining excisability. In the first instance, the commodity should be a 'manufactured product' in terms of Section 2(f) of the Act. Bagasse is only a waste and not a product consciously manufactured by the appellant. The department has no case that bagasse was also included in the Registration Certificate issued to the appellant. As it was not a manufactured product, it could not be excisable and consequently could not be treated as 'exempted goods' for purposes of Rule 6(3) of the CENVAT Credit Rules, 2004. Mere mention of bagasse in the First Schedule to the Central Excise Tariff Act is also of no consequence. In fact, this point was also considered by this Tribunal in the case of Shakumbari Sugar & Allied Industries Ltd. (supra). The Tribunal's view was upheld by the Apex Court. In the result, the appellant has a clear case against denial of CENVAT Credit, on the strength of the said decision of this Tribunal. As regards the credit of Rs. 3,35,806/-, the appellant reversed it even prior to issuance of the show cause notice. Therefore, in both the appeals, the appellant is entitled to waiver of pre-deposit and stay of recovery as prayed for. It is ordered accordingly.