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TMI Blog2010 (12) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order, the Commissioner (Appeals) has disposed of the appeals by reducing the penalty while confirming the order of the adjudicating authority on the point of demand of duty on the waste and scrap. The adjudicating authorities by their orders dated 5-2-2003 and 31-12-2003 had confirmed the demand of duty to the tune of Rs. 1,89,802/- and Rs. 1,82,928/- respectively as interest besides imposing penalty of Rs. 2,000/- and Rs. 10,000/- respectively. The demand under order dated 3-2-2003 related to the period from 10-9-2001 to 31-3-2002 whereas the demand under order dated 31-12-2003 related to the period from July 2002 to March 2003. The proceedings in the first matter were initiated under show cause notice dated 27-8-2002 whereas in rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing manufactured, mere generation of scrap and waste do not amount to manufacture and, therefore, no duty was leviable and for the same reason no penalty was warranted. 6. It was specific case of the assessee that the waste and scrap was generated by cutting of sheets, plates etc. for making and replacing various parts of machinery and plant during periodic repairs and maintenance of the plant. During such process, certain end pieces were left out which were accumulated and sold as scrap. These items were neither manufactured by the assessee nor waste and scrap had arisen during the course of the manufacture of any final product. Those items were not classifiable under any chapter heading and demand of duty on waste and scrap was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated out of any manufacturing process. Referring to the facts of the case, it was submitted that the waste and scrap in the case in hand, was not generated out of any manufacturing process as such. 9. On the other hand, the DR submitted that the decision in Prism Cement case was delivered solely on the ground that in the earlier case of the Prism Cement, the same was decided in favour of the assessee and it was not challenged and, therefore, in the absence of any new material brought on record in relation to subsequent period of the same assessee the Tribunal held that there was no justification to take a different view and that, therefore, the order was delivered in favour of the assessee. In the said case, undisputedly, the earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same parties in relation to the same subject matter, even though it is for different period, unless additional evidence which would justify such adjudication was brought on record. Obviously, therefore, the decision in Prism Cement case was not on the point in issue but on the ground that issue was already decided in relation to that assessee pertaining to the earlier period and no new evidence was available to take a different view in relation to the subsequent period on the same issue and pertaining to the same subject matter. Hence, the decision is of no help to decide the issue in question. 11. The Rajasthan High Court in Grasim Industries case after taking note of the fact that M.S. Scrap and Iron were generated during the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other reasons. 13. Taking into consideration the decision of the Rajasthan High Court, it is difficult to accept the contention sought to be canvassed on behalf of the appellants. It is true that in Prism Cement case the Tribunal had answered the issue in favour of the assessee. The same however, was not on adjudication of the issue but on the ground that in the earlier adjudication the issue was answered in favour of the assessee and there was no justification to take a different view in respect of the similar case of the same assessee for the subsequent period in the absence of any evidence on record justifying such different view. Besides as rightly pointed out by the DR the decision of the Rajasthan High Court was not brought to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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