TMI Blog2017 (4) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... required to register with the Department - the appellant have paid the duty by opting for the compounding scheme, soon after, the inspection and much before the issue of SCN under proper intimation to the Revenue. There is no ostensible reason for rejecting the compounding facility for payment of duty on Aluminum Circles, given by the courts below. The reason given for rejection of exemption on removal of scrap when the final product is not liable to duty, is far-fetched and amounts to stretching the law which is not permissible - the appellant is entitled to the compounding facility under N/N. 34/2001-CE, and they have rightly paid the duty - the appellants are also not required to pay duty on the Aluminum Scrap removed, in terms of N/N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Quantity (in Kgs.) Value (Rs.) 1 Aluminum Utensils 8576.274 9,86,271/- 2 Aluminum Circle 7227.000 7,22,700/- 3 Aluminum Scrap 5180.000 4,66,200/- 4 Aluminum Sheet 1560.000 1,52,880/- 5 Scrap of Manufactured Goods 7008.000 6,73,600/- Total 30,01,651/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay duty of Central Excise on the basis of Cold Rolling Machines installed for Cold Rolling (Compounded levy) (a) where the length of roller is 30 inches or less - ₹ 7,500/- per month (b) where the length of roller is more than 30 inches ₹ 10,000/- per month. It further appeared that the appellant have not opted for any of the two options and as alleged in the Show Cause Notice dated 26/06/2008, the appellant furnished the details of quantity of utensils manufactured and cleared during the relevant period. Further, the quantity of stock of Aluminum Scrap cleared during the said period. Based on those figures Revenue calculated the quantum of Aluminum Circles, likely to be manufactured, based on the stated 10% loss during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order, was pleased to reject the appeal of the appellant-assessee, but was pleased to allow the appeal of Revenue, allowing levy of duty on Aluminum Scrap ₹ 27,53,882/- which was dropped by the joint Commissioner in the Order-in-Original and also imposed penalty under Section 11 AC of the Central Excise Act, 1944 of equal amount on the same. The ld. Commissioner (Appeals) disputed that this demand was dropped on the ground that Aluminum Utensils attracted nil rate of duty and waste and/or scrap arising during manufacture, were also exempted in terms of Notification No. 89/1995 CE dated 18/05/1995. The ld. Commissioner observed that the said notifications says that nothing contained in this notification shall apply to the scr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted at 2007 (208) E.L.T. 531 (Tri. Chennai). This Tribunal held that where option of choosing between two notifications is there, and description of goods in both notifications give opportunity to the assessee to choose one of his choice, the assessee is entitled to choose a notification more favourable to him. He, further, states that there is no disability in the said Notification No. 34/2001-CE that if the same is not opted for, prior to the date of production or prior to the start of the financial year, the same is not available. He, further, said that the appellants had made the belated application, pursuant to the inspection along with evidence of payment of duty and the same had been rejected summarily, without any speaking order. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so find that there is no ostensible reason for rejecting the compounding facility for payment of duty on Aluminum Circles, given by the courts below. I further find that the reason given for rejection of exemption on removal of scrap when the final product is not liable to duty, is far-fetched and amounts to stretching the law which is not permissible. Accordingly, I hold that the appellant is entitled to the compounding facility under Notification No. 34/2001-CE, and they have rightly paid the duty. I also hold that the appellants are not required to pay duty on the Aluminum Scrap removed, in terms of Notification No. 89/95-CE. Accordingly, the appeal stands allowed with consequential benefits. The impugned order is set aside. ( Dictate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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