TMI Blog2013 (11) TMI 1215X X X X Extracts X X X X X X X X Extracts X X X X ..... d the waste and scrap. The loss on account of waste and scrap is only 2% which has not been argued to be unreasonable by the Revenue - There is also no binding clause in Rule 4(5)(a) of CENVAT Credit Rules, 2004 that any loss of inputs by generation of waste and scrap has to be compensated by reversing equivalent credit taken on the virgin metal - demand if any on waste and scrap has to be raised against the manufacturer job worker and not upon the raw material supplier – Decided in favour of Assessee. - Appeal No.E/511/2012 - Final Order No. A/11149/2013-WZB/AHD - Dated:- 6-9-2013 - MR. H.K. THAKUR, J. For the Appellant : Shri Dhaval Shah, Adv. For the Respondent : Shri P.N. Sarvaiya, Astt. Commissioner (A.R.) JUDGEMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of duty and that appellant has no case. 4. Heard rival submissions and perused the case records. So far as the process of manufacture is concerned, there is no dispute that appellant is sending copper strips and rods to the job workers for drawing into copper wires and certain waste is generated. It is claimed that there is about 2% loss in the process of drawing wires either burning loss or physical waste. It is the case of the appellant that under the provisions of Rule 4(5)(a) of CENVAT Credit Rules, 2004, it is not obligatory to bring back the waste and scrap generated at the job worker s end. They have relied upon CESTAT Mumbai s judgment in the case of Mahindra Hinoday Industries Ltd Vs. CCE Pune (supra). In Para 7 of this judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrary to the provisions of these rules. In Fag Engineering case (supra), it was held that no duty liability can be fastened upon the principal manufacturer in case of non-receipt of goods in terms of rule 4(5)(a) of the CENVAT Credit Rules, 2004 and the only consequence would be reversal of credit availed on the inputs in case goods on which credit has been taken and which has been allowed to be removed for job work is not brought back within the time period stipulated. The same legal position was held in the case of Rocket Engineering decided by this Tribunal as also by the Hon'ble High Court of Bombay. In the light of these judicial pronouncements, it has to be held that the principal manufacturer who has supplied the inputs as such or p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity which was found short on account of processing hence the demand is not sustainable hence set aside." 11. I also find that Hon'ble High Court of Gujarat in the case of CMC (India) (supra) in para 7 have recorded the following findings:- "7........Here, there is a concurrent finding of fact by both the authorities and there is no finding by the authorities to the effect that the loss occurred was unreasonable and both the authorities have also verified that the loss claimed by the appellant was based on the records and it would not amount to clandestine removal of goods. Even otherwise, there was no clear admission that the goods were clandestinely removed. Since this being a finding of fact, we are of the view that no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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