TMI Blog2013 (8) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... annels, M.S. Beams - The metal scrap and waste arise only when the assessee undertakes repairing and maintenance work of the capital goods and, therefore, do not arise regularly and continuously in the course of a manufacturing business of cement. The scrap generated in the repair & maintenance workshop of the factory cannot be said to be the scrap generated in a manufacturing process or a byproduct of manufacturing process and hence the same was not excisable - M/s. Grasim Industries Ltd. Versus Union of India [2011 (10) TMI 2 - SUPREME COURT OF INDIA] - The issue of getting a new identity as M.S. Scrap and Iron Scrap as an end product due to manufacturing process does not arise for consideration - The repairing activity in any possible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,332/- along with interest thereon under Section 11AB and imposed penalty of equal amount on the appellant under Section 11AC ibid. The demand for the remaining amount was dropped. In the course of proceedings before the Asstt. Commissioner, the appellant pleaded that the entire scrap was of the old and worn out machinery or machinery parts and hence was not excisable, but this plea was not accepted. The appellant filed an appeal before the Commissioner (Appeals) against the Asstt. Commissioner s order, who vide order-in-original dated 11-5-2001 dismissed the appeal in toto. The Commissioner (Appeals) while dismissing the appeal observed that the appellant s plea that the entire scrap was of old and used parts of machinery is not correct, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for restoration before the Tribunal on 24-2-2012. At that time, both the sides were represented. Tribunal after hearing both the sides vide Order No. 172/2012-EX(BR), dated 24-2-2012 recalled the Final Order No. 45/2002-B, dated 16-1-2002 and restored the appeal to its original number and ordered for being listed for final disposal on 28-5-2012. 2. The matter was finally listed for fresh hearing on 25-6-2012. 3. Heard both the sides. 4. Shri Kulvinder Singh, Advocate, appearing for the appellant, pleaded that the scrap on which the duty has been demanded was in form of old and unuseable machinery and parts thereof, no longer useable and this scrap is not liable to any duty, that the department s contention that the scrap was of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rication of machinery parts has been considered by the Asstt. Commissioner as well as by the Commissioner (Appeals) and their findings are that while no duty had been demanded on the quantity of scrap in form of old and used machinery/parts, the duty has been demanded only on that quantity of scrap, which according to the department, had been generated in the workshop in the course of manufacture/fabrication of parts of machinery for replacing the old and worn out parts. However, even if the department s contention that the scrap on which the duty has been demanded is that which had arisen in the workshop in the course of manufacture/fabrication of the parts of the capital goods is accepted, in our view, the duty demand would not survive as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product due to manufacturing process does not arise for our consideration. The repairing activity in any possible manner cannot be called as a part of manufacturing activity in relation to production of end product. Therefore, the M.S. scrap and Iron scrap cannot be said to be a by-product of the final product. At the best, it is the by-product of the repairing process which uses welding electrodes, mild steel, cutting tools, M.S. Angles, M.S. Channels, M.S. Beams etc. 15. Learned ASG has placed reliance on the decision of this Court in CST v. Bharat Petroleum Corpn. Ltd. (supra). In that case, the assessee purchased sulphuric acid and cotton for the manufacturing of kerosene and yarn/cloth. In the manufacturing process, the acid sludge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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