TMI Blog2011 (10) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... , assessee filed necessary declarations thus, no suppression with intent to evade duty can be alleged against the assessee. Thus, order whereby the penalty is set aside is upheld. - Decided in favor of assessee. - E/685/04-Mum & E/976/04-Mum - - - Dated:- 27-10-2011 - Mr S.S.Kang, Mr.Sahab Singh, JJ. Appearance Ms. Aparna Hirandagi, Advocate for Appellant company Shri Y.K.Agarwal, ACAR for Department Per : S.S.Kang Heard both sides. 2. The appellants M/s. Cable Corpn.of India as well as Revenue filed appeals against the Order-in-Appeal passed by the Commissioner(Appeals). 3. The brief facts of the case are that the appellants M/s. Cable Corpn.of India (hereinafter referred to as 'assessees') are engaged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial was found to be contaminated which is not fit for use in the manufacture of final product and the same has been cleared as scrap. Such scrap was cleared by issuing invoices on 29.9.1999. The assessees vide letter dated 12.10.1999 informed the Revenue regarding clearance of the scrap. The contention is that as the raw material was put to use in or in relation to the manufacture of final product, therefore, credit cannot be denied. The assessees relied in the case of Tata Engineering Locomotive Co.Ltd. vs. Commr.of Cen.Excise, Pune wherein the Hon'ble Bombay High Court held that credit is available in respect of the inputs which are subjected to destructive test before put to use in or in relation to the final product. 6. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me were deformed and the same are cleared as scrap. In these circumstances, the Hon'ble High Court held that the credit is admissible in respect of parts which are cleared as scrap. In the present case, the facts are different. Raw material is being tested before the same is accounted for by stores department. Certain material which is contaminated is cleared as scrap. In these circumstances, the raw material on which credit has been availed is not used for in or in relation to the manufacture of final excisable goods, therefore, the assessee is not entitled for credit on such quantity of raw material. Hence, we uphold the impugned order whereby the demand alongwith interest is confirmed in this regard. 9. In respect of penalty, we find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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