TMI Blog2004 (9) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent. [Order per : V.K. Agrawal, Member (T)]. The issues involved in this appeal, filed by M/s. Apollo Tyres Ltd. are whether the waste and scrap of iron and steel cleared by them is chargeable to Central Excise duty and whether the demand is time barred. 2. Shri Joseff Kurian, ld. Advocate, mentioned that the Appellants manufacture pneumatic tyres and avail CENVAT credit of the du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection XVI of the Schedule to the Central Excise Tariff Act, they being a unit engaged in the manufacture of tyres (rubber goods) and accordingly, the metal waste and scrap could under no circumstances be treated as excisable; that further in any case the waste and scrap relates to both Modvat and non-Modvat items; that it is incumbent on the Department to prove the dutiability of the scrap and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or capital goods; that packing material in which inputs are brought into the factory is not chargeable to duty as waste as has been held by the Supreme Court in the case of CCE v. West Coast Industrial Gases Ltd., [2003 (155) E.L.T. 11 (S.C.)]. Finally, the learned Advocate submitted that the demand of duty is time barred also as the show cause notice was issued on 19-4-2001 for demanding duty fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered the submissions of both the sides. The duty has been confirmed against the Appellants on the ground that they had removed waste and scrap of iron and steel. The show cause notice does not mention as to how the waste and scrap has been generated out of modvatable inputs or out of which Capital goods in respect of which Modvat Credit had earlier been availed of. The Appellants have contended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facturing processes. Similarly, the revenue has not mentioned the capital goods on which Modvat Credit was taken and had been sold as scrap and as such Rule 57S(2)(C) of the Central Excise Rules is not attracted. The appellants have also emphasized the fact that the waste and scrap has been obtained in the course of construction actively which is not chargeable to duty as no manufacturing process ..... X X X X Extracts X X X X X X X X Extracts X X X X
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