TMI Blog2009 (8) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Cenvat credit, neither it was out of any manufacturing process and that the respondent had not been able to disprove the said fact established by the appellants and hence , there was no question of scrap being subjected to duty liability. 4. The impugned order is sought to be justified on the ground that the provisions of law do not require issuance of show cause notice immediate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od 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 amount to manufacture within the meaning of said expression under the said Act nor any Modvat credit was availed on the inputs utilised in the process of generation of scrap nor there was any duty liability in relation to such scrap or waste. It is further case of the appellants they are not manufacturer of waste and scrap and in the absence of availment of any modvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 restrict action for period of one year after furnishing all the details for the relevant period to the respondent, the question of invocation of extended period of limitation cannot arise by exercise of powers under the statutory provision which deal with the applicability of extended period of limitation. 8. Further placing reliance in the decisions in the matter of U.O.I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 one taken by the Tribunal in the said decision. 10. On the other hand, the learned Jt.C.D.R. 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. 11. Though various points have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 different period in relation to the same product generated in the factory of the appellants themselves cannot arise, unless additional evidence which would justify such adjudication is brought on record. Being so, we do not find any justification to take a different view in relation to the remaining period which is the subject matter of the present proceedings. On this l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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