9911796707
TMI Blog2005 (11) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... shells. Duty/reversal of credit wrongly taken was demanded from them and a penalty was imposed. 3. Shri M.V. Venkateshwaran and S.V. Kulkarni are the Senior Executives of Wipro Limited. Penalties are imposed on them under Section 209A of Central Excise Rules. 4. The three appellants are aggrieved by the order of the Commissioner. The Revenue also is in appeal against the same order. It is a case where nobody is happy. We first deal with M/s. Wipro's appeal. We divide the issues in the same manner as the Commissioner did in the impugned order. The period involved is 1994-95 to January 1997. The show cause notice was issued in August 1999 invoking larger period of limitation. 5. Heard all the parties concerned. (a) Adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , however, held that duty is payable on such paper scrap. The appellant contends that he is not required to pay duty on such paper scrap, as such paper scrap is not the result of a process of manufacture. It was argued that the Commissioner's order, demanding Rs. 93,709.97 (Rupees Ninety three thousand seven hundred nine and paise ninety seven only) towards duty on the paper scrap is not tenable. The Ld. DR, on the other hand contends that duty is payable on waste paper under Chapter heading 47.02 of CETA as that such waste has arisen out of process of manufacture. We observe that except a bare assertion that the waste paper in question emerged during the course of manufacture, no evidence has been discussed in this regard in the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in RG23A Part-I is because the former is computer generated whereas the latter is manually prepared is unsatisfactory. The statement of the concerned person also supports the Department's contention that credit was taken on inputs, which did not really exist. We uphold the Commissioner's contention that proportionate Modvat credit is required to be reversed. (e) Capital goods on Electrostatic Power Coating machine and sealing machine : The Commissioner denies credit quoting Rule 57Q(5) of the relevant time which says the credit shall not be allowed, if such capital goods were received in the factory before 1 day of March 1997. The appellant argues that while the machines were rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct without payment of duty. The issue pertains to dutiability of these samples for test. The Commissioner held that duty has to be paid on such samples as they were removed after they were fully manufactured. The Hon'ble Supreme Court in the case of ITC Limited v. Commissioner of Central Excise - 2003 (151) E.L.T. 246 (S.C.) held that stocks of cigarettes removed prior to packing but after they were fully manufactured, for quality control tests are liable to duty. The Hon'ble court comes to this conclusion after analyzing Section 2(d), 2(f) of Central Excise Act. We find that the ratio laid down in this decision is fully applicable in the present case. The appellants reliance on the Tribunal's Larger Bench decision in the case of Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the fact duty has been wrongly demanded on the paper scrap, we reduce the penalty under Section 11AC to Rs. 8.00 lacs (Rupees Eight lakh only). Penalty of Rs. 5,000/- (Rupees Five thousand only) imposed under Rule 173Q is set aside. For the reason set out in the impugned order, we uphold the contention of the Commissioner that penalty is imposable on Shri S.V. Kulkarni and Shri Ventakeshwaran under Rule 209A. These appellants contention that they have not actually dealt with the capital goods liable to confiscation and therefore no penalty is imposable is rejected. Dealing with the goods liable to confiscation does not mean that the persons concerned should actually touch, handle and physically deal with such goods. It is enough ..... X X X X Extracts X X X X X X X X Extracts X X X X
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