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2016 (8) TMI 347 - CESTAT NEW DELHI

2016 (8) TMI 347 - CESTAT NEW DELHI - TMI - Demand - Clearance of waste and scrap - Availment of Cenvat credit without payment of duty - Demand confirmed by various authorities below on the ground that the waste and scrap has arisen from mechanical working of metal and hence, properly classifiable under Chapter Heading 7204.90 and therefore, liable to payment of duty. - Held that:- the confirmation of demand has been done by travelling beyond the grounds made in the show cause notice and hen .....

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7-EX[DB] - Final Order No. 52404/2016 - Dated:- 15-6-2016 - Ms. Archana Wadhwa, Member (Judicial) and Shri V. Padmanabhan, Member (Technical) Shri Vipul Agarwal, Advocate for the appellant Ms. Kanu Verma, JCDR for the respondent ORDER This appeal is directed against the Order of the Commissioner (Appeals), Bhopal dated 6/12/2006. Since, this is the second round of litigation before this Tribunal, it is necessary to recount the sequence of events for better appreciation of the issue involved:- (i .....

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which cenvat credit has been availed, without payment of duty under cover of an commercial gate pass, the noticee have contravened the provisions of Rule 11 of Central Excise Rule 2001 and 2002 which provides for clearance of excisable goods under cover of an invoice. The noticee have failed to substantiate that the waste and scrap have arisen out of goods on which Modvat/Cenvat Credit has not been availed. In addition by failing to determine and discharge appropriate duty liability on aforesaid .....

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that the goods liable to duty if they arise as a result of a process of manufacture or production, that is, if they are a new and distinct commercially identifiable article as defined under Section 3 of the Central Excise Act, 1994. In this case party have sold the said waste and scrap under cover of invoice cum challan to the different buyers. Therefore it is clear that the scrap in question are marketable, hence comes under the category of goods and appropriately classifiable under CH. No. 720 .....

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Therefore, it is clear that the said waste is classifiable under Ch. H. No. 7204 of CETA and, hence, dutiable. (iv) When the issue reached the Tribunal, it was remanded back to the Commissioner (Appeals) vide order dated 19/7/2005 with the following observations: In the SCN, it has been alleged that the appellants had availed the Modvat Credit on the goods detailed therein and as such the scrap also arising out of the same could not be cleared by them without payment of duty. The appellants had .....

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on entirely different ground that the waste arising during the repair and maintenance of the plant and machinery being classifiable under Chapter Heading 7204, in terms of Section 5 (a) of Section XV of CETA 85, was dutiable. The question as to whether the appellants had availed the Modvat Credit or not, cannot be decided here as copies of the documents which were not produced before the Adjudicating Authority, have been brought on record. Therefore, I have no option to send back the same to the .....

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Boring scrap and M.S. Scrap mixed with tin paper scrap, as rightly argued by the lower authority. 3. The appellant is before us against the impugned order. 4. Heard Shri Vipul Agarwal, Advocate for the appellant and Ms. Kanu Verma, JCDR for the respondent. 5. From the sequence of the case, outlined above, it is fairly clear that the demand made in the show cause notice is hinging around the question whether CENVAT/Modvat Credit has been taken on cement making machinery. The demand has been made .....

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