TMI Blog2015 (5) TMI 1011X X X X Extracts X X X X X X X X Extracts X X X X ..... ed period, find that the appellant had made proper disclosure in its Books of Account and have also cleared goods on the proper invoice upon payment of duty and also the facts were declared in the ER-1 returns. There is no suppression and/or contumacious conduct found on the part of the appellant. Thus, it is held that the extended period of limitation is not invocable. The demand is confined to the normal period from the date of show cause notice. Further, the issue is interpretational in nature. Thus, the penalty imposed is set aside. - Decided partly in favour of assessee - E/2017/2010-Mum - Final Order No. A/1036/2015-WZB/SMB - Dated:- 5-5-2015 - Shri Anil Choudhary, Member (J) Shri Mayur Shroff, Advocate, for the Appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... melting the rejected finished goods, to convert them into brass bar and further remanufacture of brass components, which are cleared on payment of duty or exported, the appellant are eligible for availing Cenvat credit of duty paid on rejected finished goods. The appellant also placed reliance on the case laws in the case of Alcobex Metals Ltd. v. Commissioner of Central Excise - 1993 (68) E.L.T. 146 (Tri.). The appellant also submitted a statement showing Cenvat credit taken on such rejected goods received back by them during the period 1-9-2005 to 31-8-2007. Thereafter show cause notice dated 8-7-2009 was issued for the aforementioned transaction as the Revenue felt that the process to which the rejected goods are subjected to does not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of Central Excise Rules read with Section 11AC of Central Excise Act. 2.3 Being aggrieved, the appellant preferred an appeal before the Commissioner (Appeals). The Commissioner (Appeals) was pleased to observe that after receipt of the rejected goods, the appellant subjected the same to testing and segregated repairable and unrepairable goods. There is no record with regard to the repairable goods. The scrapping of the goods in question cannot be termed as amounting to manufacture as defined under Section 2(a) of the Central Excise Act. Accordingly, agreeing with the view taken by the adjudicating authority, the appeal was rejected and the Order-in-Original was upheld. 2.4 Being aggrieved, the appellant is in appeal before this Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise, Belgaum - 2007 (220) E.L.T. 210 (Tri.-Bang.) is not applicable as in the said case the goods received for repair and were cleared as waste and scrap at a lower price to an outsider. There was no receiving back of the goods pursuant to any job work, which is in total contrast with and as such reliance of the said ruling is misplaced. So far the reliance placed by the Revenue on the ruling of Hindalco Industries Ltd. v. Commissioner of Central Excise, Belapur - 2007 (215) E.L.T. 547 (Tri.-Mum.), the facts in that case were that after inspection of the rejected goods received, the appellant cleared the rejected goods as waste and scrap and the appellant had availed the Cenvat credit as per Rule 16(1) when the goods were received bac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by them as scrap, the duty at the appropriate rate was paid by them on the scrap and this fact has not been taken into account by the Revenue. He also submitted that the rate of duty applicable on the scrap is almost equal to the rate at which the Cenvat credit has been denied to them. He submitted that from the date of issue of the show cause notice, the amount involved in respect of the demand comes to about ₹ 55,000/- only. In support of this contention, he submitted that, as per the decision of the Tribunal in the case of Alcobex Metals Ltd. v. CCE - 1993 (68) E.L.T. 146 (T), the applicant is entitled to take the Cenvat credit on the goods received back by them after rejection by the customers. He relied on the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned AR appearing for the Revenue relies on the impugned order and also relied on the ruling in the case of Jinabakul Forge Pvt. Ltd. (supra) and also on the ruling in the case of Birla Corporation Ltd. v. Commissioner of Central Excise - 2008 (224) E.L.T. 567 (Tri.-Mum.), wherein Single Member Bench under the facts that the goods were damaged during transfer and the goods were in transit insurance, which was claimed from the insurance company and as such the goods could not have been used as input and as such availing of Cenvat credit was found to be not acceptable which amounted to part of the amount as consideration. If the other part relating to defective goods which should be considered non-marketable goods and the payment of duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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