TMI Blog2016 (3) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... ollo Tyres Ltd (2004 (9) TMI 548 - CESTAT, NEW DELHI ) and Hindalco Industries Ltd (2001 (12) TMI 120 - CEGAT, NEW DELHI ). There is no dispute as to the fact that the said waste and scrap which is generated, as indicated herein above is generated during the fabrication of the refinery in the factory premises of the appellant. In our considered view this kind of waste and scrap as indicated hereinabove cannot be dutiable in the hands of appellant as waste and scrap arising out of the manufacturing activity.- Decided in favour of assessee Clearance of waste and scrap of inputs and capital goods, rejected/damaged inputs and capital goods - reversal of CENVAT credit - Held that:- As seen from the reproduced specimen list that the said items ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, on various scrap generated in their factory premises, more so when all the removals have been recorded in the books maintained by them - Decided in favour of assessee - E/856/2004 & E/461/2005 - Final Order No._20060-20061/2016 - Dated:- 19-1-2016 - SHRI M.V. RAVINDRAN, JUDICIAL MEMBER AND SHRI ASHOK K. ARYA, TECHNICAL MEMBER For the Petitioner : Mr. Rajesh Chandra Kumar, Adv For the Respondent : Mr.Ajay Saxena, A.R. ORDER PER : M.V.RAVINDRAN These two appeals are filed by the Revenue as well as the appellant assessee against order-in-original No. 01/2004-05 dated 29.04.2004. Since the appeals challenge the same order-in-original, they are being disposed of by a common order. Appellant assessee is contesting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n scrap which is generated during the fabrication of structures during the period in question and cleared without payment of duty as per Annexures 1,2 3. He would then draw our attention to the impugned order and submit that the said impugned order has come to a conclusion that scrap generated in the factory premises of the appellant is classifiable under Chapter Heading No 72 while it is not the proposition in the show-cause notice. Subsequently he would take us through the entire findings and submit that the scrap which is generated in the factory premises is nothing but scrap which has arisen due to replacement of the machinery. While the adjudicating authority has held that the clearances are of the inputs or the capital goods as such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the items and the said items were in fact used for construction/fabrication in the refinery. He would submit that the adjudicating authority has given detailed reasoning to come to a conclusion that waste and scrap arising out of such fabrication would be liable to duty. He would then take us through the order-in-original and submit that on issue of limitation, appellant has no case inasmuch as they had never informed the department about the removal of scrap without payment duty. He relies upon the judgment of the Tribunal in the case of Hindustan Zinc Ltd Vs CCE Jaipur [2011 (272)ELT 400 (Tri-Del)]. He would also draw our attention to the specific finding recorded by the adjudicating authority as to what are all the items that were cleare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t payment of duty: * Boring/turning scrap * Brass boring scrap * Heavy structural scrap * Misc. steel scrap * MS plate scrap * MS Steel * MS structural * Scrap * Scrap steel plates * Scrap structural steel * SS plate * Steel scrap * Structural steel scrap * Structural scrap * Template/structural scrap * Turning scrap/brass boring * Used MS plates It can be seen from the above reproduced clearances effected by the appellant assessee that the said items are scrap arising out of working on the structural/steel procured by the appellant assessee for construction/fabrication of refinery. The said scrap cannot be considered as arising during the course of manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that the said items are nothing but scrap or damaged goods which cannot by any stretch of imagination be considered as clearance of inputs or capital goods as such. When there is no clearance of inputs or capital goods as such, question of reversal of CENVAT credit availed on such items does not arise. We find that this matter is now settled by the Apex Court in the case of Grasim Industries Ltd. (supra) and followed by the Tribunal in the case of CEAT Ltd (supra), Precot Industries Ltd (supra) and CCE Pondicherry Vs CESTAT Chennai (2013(297)ELT 498 (Mad)]. In view of the foregoing we are of the view that the demands confirmed under Point No. 2 are not sustainable. 10) As regards point No. 3 i.e. the clearance of the inputs as such, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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