TMI Blog2011 (9) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... ap generated at the job workers premises and said liability falls on the job workers who have actually manufactured the waste and scrap. In case, the department wanted to recover duty on the waste and scrap, then the demand should have been raised on the job workers as has been held in Alucast Foundries. - E/1276/09 - A/385/2011-WZB/C-IV(SMB) - Dated:- 19-9-2011 - Mr. P.R. Chandrasekharan, J. S/Shri Prakash Shah, Advocate with Prasad Paranjape, Advocate for the appellant Shri V.K. Singh, A.D.A.R. for the respondent The appeal is directed against Order-in-Appeal No. P-I/VSK/190/2009 dated 21.08.09 passed by the Commissioner of Central Excise (Appeals), Pune I 2. The facts of the case are as follows. The appellant Mahindra Hinoday Industries Ltd. are manufacturers of excisable goods falling under Chapter 37, 84 and 87 of the Central Excise Tariff. They sent out various types of cast articles for job work to various job workers for the purposes of machining/fettling, bending, or carrying out any other operation necessary for the manufacture of final product. The finished goods are removed from the premises of the job workers and directly sent to the customers i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he job workers premises. The ld. lower appellate authority accepted the plea of the department and set aside the order of the lower adjudicating authority and held that the appellants are liable to pay excise duty on the waste and scrap generated at the job workers premises in terms of undertaking given by them under Rule 4 of the CENVAT Credit Rules, 2004. The appellant are before us against the impugned order. 3. The ld. counsel for the appellant submits as follows. They have not given any undertaking that they would discharge liability on the waste and scrap generated at the premises of the job workers since the job workers are the manufacturers of waste and scrap (and) liability to pay excise duty lies on the job workers and not on the principal manufacturer. In the permission granted to them for clearance of finished goods from job workers premises vide permission dated 11.4.05, it has been stated as follows:- the aforesaid permission is granted subject to fulfilment of the condition stipulated vide trade notice no. 38/02 dated 10.6.2002 of this Commissionerate and liability of the job workers to pay service tax on the job charges with effect from 10.9.2004. From the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted judgements. 4.1 As regards the condition prescribed in Trade Notice no. 38/2002, the counsel points out that condition which are contrary to the provisions of law cannot be incorporated in circulars and trade notices and places reliance on the judgment of the Hon'ble Apex Court in CCE vs. Ratan Melting Wire Industries 2008 (231) ELT 22. In the said case, the apex held as follows:- Circulars and instructions issued by the Board, are no doubt, binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarification/circulars issued by the Central Government and of the State Government are concerned, they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly processed inputs outside his factory to a job worker may, by an order which shall be valid for a financial year, in respect of removal of such input or partially processed input, and subject to such conditions as he may impose in the interest of revenue including the manner in which duty, if leviable, is to be paid, allow final products to be cleared from the premises of the job worker. 7. A reading of the rule clearly indicates that the Asst. Commissioner can impose conditions in the interest of revenue including the manner in which duty, if leviable, is to be paid. The Commissioner has prescribed the manner in which the duty liability has to be discharged vide trade notice 30/02 wherein he has fastened the duty liability on the principal manufacturer rather than on the job worker. The waste and scrap is generated during the course of the job work and it is a job worker who is the manufacturer of waste and scrap under the Central Excise Rules, 2002 and the liability to pay duty is on the person who produces or manufactures any excisable goods in terms of Rule 4 of the said rules and duty liability has to be discharged in the manner provided for in rule 8 of the said rules. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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