TMI Blog2005 (2) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... imported DEHPA. DEHPA is a media used in the electrolysis process during the course of manufacture of zinc. The appellant cleared 250 drums of DEHPA as per Bill of Entry No. 298, dated 30-4-1996 under the benefit of Project Imports took Modvat credit as Capital Goods eligibility. DEHPA gets corrupted, as it gets mixed up with foreign impurities during the coarse of manufacture over a period of time, such accumulated corrupted DEHPA, over a period of time, had to be removed from the process and stored separately. The appellant found a buyer for such DEHPA and disposed of the same on a commercial invoice. According to the understanding of the law by the appellant such spent material was non-excisable. Therefore they cleared 20 drums of acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er day works out to be only 0.007% per day, which is extremely negligible considering the period of time involved. 1.3It is submitted that initially when the goods were imported on 4-7-1995, the benefit of Project Imports under Chapter 98 of Customs Tariff was refused by the Assistant Commissioner (Appraising). However, on appeal it was allowed by the Commissioner (Appeals). Learned Commissioner (Appeals) has found this DEHPA is required for the initial charge in the setting up of the plant and it thereafter becomes an integral part of the plant. The chemical known as DEHPA, which will be used for a period of about 20 years as it gets recycled continuously in the plant without undergoing any evaporation or other loss except for the normal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) therefore allowed the benefit of Project Imports under Chapter Heading No. 98.01 of the Customs Tariff. 2.1It was held vide impugned order of the Commissioner before us that DEHPA (spent) packed in 20 drums and seized under the Panchanama were cleared without payment of Central Excise duty, without any intimation to the Excise Department and therefore it had contravened the provisions of the Central Excise Rules. Central Excise duty on such DEHPA cleared was therefore demanded. It was also proposed to deny the proportionate amount of Modvat credit and recover the same under the provisions of Rule 57U(3), 57U(6), 57U(8). Penalty provisions under Section 11AC of the Act and the Central Excise Rules were invoked and confirmed. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not result in an excisable activity commodity. In the case of Ahmedabad Electricity Co. Ltd. the decision and consideration was in relation to Cinder ash arising from coal. The ratio of that decision would squarely apply in the case of catalyst and capital goods. The Tribunal also in series of decisions have been holding that scrap of capital goods machinery will not be liable to duty, as scrap of metal manufactured in factory, in this view of the matter, we cannot uphold the order of the ld. Commissioner to consider that DEHPA (spent) was manufactured excisable product from DEHPA imported when used as capital goods. There is therefore no liability of Central Excise Duty or as regards clearance of spent DEHPA. The finding of the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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