9911796707
TMI Blog2012 (6) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... , vide Final Order No.C-II/2739-41/WZB/ 2001, dt.30.10.2001 disposed off the appeal, upholding the order of adjudicating authority. Aggrieved by such an order, the assessee preferred a statutory appeal before Apex Court in Civil appeal 1274 of 2002 which was disposed off by Hon.Apex Court vide its Order dt.21.08.07. 2. The only issue to be decided by the Bench in this case, as set out by Hon.Apex Court in their order, is as under: However, there are two contentions advanced on behalf of the appellant before us which were also argued before the Tribunal. In the present case, the Department has denied the benefit of SSI exemption of aluminum ingots for the year 1990-91 on the ground that the aluminum circles cleared by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of such goods, cannot be taken into account for determination of the ceiling limit of Rs.2 Crores. This contention has not been answered by the Tribunal. There is one more contention raised by the appellant, namely, that pat scrap which fell on the ground and which had emerged in the course of manufacture of aluminum circles, cannot be said to have been manufactured and, therefore, no duty was payable. This contention has also not been decided by the Tribunal. On the last two points, namely, whether the appellant was entitled to exemption and whether pat scrap was excisable to Excise duty we do not wish to express any opinion. We leave it to the Tribunal to decide the said two points. Suffice it to say that we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d limit of Rs.2 Crore and they will be eligible for the benefit of SSI exemption for the year 1990-91. It is his submission that as regards second issue, there is no manufacture of scrap, duty is not leviable on such scrap. He would rely upon the following judgments: i) Indian Organic and Petrochemicals Ltd. Vs. Collr of CE & C 1996 (88) ELT 644 (SC) ii) Kolhapur Steel Ltd. Vs Collr. of C.E. Pune 1983 (14) ELT 1947 (CEGAT) iii) Salco Extrusions Pvt.Ltd. Bombay Vs Collr. of C.E. 1984 (16) ELT 356 (Tribunal) 4. He would submit that the binding decisions would cover the issue in their favour inasmuch as the duty liability on the scrap. 5. Ld.A.R. on behalf of the Department, would submit that the adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds to be calculated by excluding there-from the clearances which are made by way of exemption or Nil duty payment or the goods which are cleared under the brand name. This is very clear from the order of the Hon.Apex Court, which has been reproduced by us in Para 5 of this order. 10. This would require us to go through the factual matrix wherein we have to decide whether the clearances of Aluminum circles made by the appellant during the period 1989-90 were exempted or not. It is undisputed that during the period in question i.e. 1989-90, the appellant had manufactured and cleared the aluminum circles without recording the same. We find that the Sr.No.10 in Notification No.180/1988 during the period was applicable in the cases of go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, for the period prior to amendment referred to in that provisions, department s claim cannot be accepted. 11. It can be seen from the above reproduced paragraph that we have categorically held that prior to amendment of Notification No.180/1988, the question of duty liability on the appellant does not arise, is the finding which has been not challenged by the Revenue in their appeal before Apex Court nor was it agitated before Apex Court. We find that by Notification No.63/91-CE, dt.25.07.91, at Sr.No.11, amendments were to the said Notification No.180/1988, which indicated that the exemption contained in the notification shall not applied to the items if credit of duty paid on inputs used in the manufacture has been availed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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