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2009 (8) TMI 175

..... of various repairs and maintenance work of plants and that MS Turning and Boring scrap consisting of iron chips were formed while making required size holes on the iron pieces, shaping of iron pieces to the required size etc. - revenue has submitted that the records placed in the matter revealed that the scrap out of turning and boring process which is clearly out of mechanical work in manufacturing process and hence the scrap so generated would clearly warrant duty liability. – Impugned issue is covered by Tribunal’s order reported in [2009 - TMI - 31967 - CESTAT NEW DELHI] in the case of assessee themselves wherein it was held that no duty is liable on MS scrap, borings, turnings, etc. generated by them in maintenance and repair work - .....

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..... t, while dropping the demand of duty to the extent of Rs 3,534/- on scrap/used filter bags. The Additional Commissioner also imposed penalty equal to amount of the duty confirmed by the said order. 3. The challenge to the impugned order is two fold - Firstly, that the respondent could not have invoked the extended period of limitation in the facts and circumstances of the case and particularly in view of the fact that all the relevant facts were known to the respondent when they had issued first show cause notice earlier to issuance of the impugned show cause notice and nearly one year prior to the show cause notice in question. Secondly, even on merits, the scrap generated and disposed of were not out of the inputs which were subjected to .....

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..... and scrap of MS scrap was generated as the resultant of various repairs and maintenance work of plants and that MS Turning and Boring scrap consisting of iron chips were formed while making required size holes on the iron pieces, shaping of iron pieces to the required size etc. The details of such scrap was disclosed under the annexure to the said letter in relation to the period August 1998 to November 2000. They had also disclosed the details of electrical cables, copper scrap, plastic scrap etc. generated during the period December 1998 to December 2000 and the details of scrap as well as of used filter bags for the period June 1999 to August 2000. 6. It had been the case of the appellants that generation of such scrap and waste does not .....

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..... the respondent thereafter to issue second show cause notice by invoking the extended period of limitation for the relevant period. He further submitted that it is pertinent to note that the first show cause notice has not been adjudicated even till this date. Placing reliance in the decision of the Apex Court in the matter of Nizam Sugar Factory v. C.C.E., A.P. - 2006 (197) E.L.T. 465 (S.C.) = 2008 (9) S.T.R. 314 (S.C.), he submitted that the law on this point is well settled and therefore, it is not permissible for the Department having once issued one show cause notice to issue another show cause notice on the same set off facts by invoking extended period of limitation. In any case, he submitted that once the department has chosen to re .....

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..... dvocate for the appellants drawing our attention to the decision in their own case reported in 2008 (232) E.L.T. 564 submitted that he Tribunal has already held that MS scrap, borings, turnings etc. generated in the course of maintenance of repair work cannot be subject to duty liability. That was in relation to the period January 2001 to September 2002. He further submitted that true to his knowledge there was no challenge to the said decision till date. In the circumstances, it is not open to the Department to take contrary view from what has been held by the Tribunal in the said decision. He further submitted that even otherwise, the materials on record do not disclose any additional factor which would justify the view different from the .....

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..... generated by them in maintenance and repair work . 13. The point as to whether the scrap generated in the factory of the appellants for the period from January 2001 to March, 2002 was out of manufacturing process or not has been clearly answered in favour of the assessee and against the Department in the said decision. 14. Nothing has been brought to our notice which can reveal any challenge to the said decision by the Department before the Apex Court. In the facts and circumstances, in our considered opinion, there is no scope for re-adjudication of the same issue which has been already decided between the same parties in relation to the same subject matter by this Tribunal. The question on re-adjudication of the same issue for the differe .....

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