TMI Blog2019 (6) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... ttedly not a manufacturer of excisable goods, no duty can be demanded under section 11A (i) if at all there is any duty liability in respect of goods purchased by the appellant, it is the manufacturer who is supposed to pay the duty and if at all there is any liability, it will arise against M/s Gujarat Narmada Auto Ltd. Since the appellant have purchased the goods in auction, the department is free to settle their excise duty with Official Liquidator and not from the appellant. It is also not the case of the department that dismantling of capital goods is amount to manufacture. Therefore, there is no basis in the department s proceedings to demand any Excise Duty from the appellant. Time limitation - HELD THAT:- The entire facts of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 09/05/2003. The Range Superintendent vide letter 11/08/2003, wrote a letter to the Official Liquidator with a copy thereof to the appellant stating therein that land, building, plant and machinery etc. of the said company were confiscated by Central Excise Authorities and hence, they could not be removed without intimation/permission from the Central Excise department and Central Excise duty was also required to be paid. Vide letter dated 19/08/2003, the appellant wrote a letter to the Official Liquidator and informed that the trucks loaded with scrap material were being stopped by Excise authorities and appellant brought to the notice of the Official Liquidator that no liability was to be borne by the purchaser of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise issued a Show Cause Notice dated 02.12.2005 and proposed to demand and recovery of Central Excise duty of ₹ 5 lakhs under the proviso to section 11A(1) of the Central Excise Act, 1944 with interest and also penalty under Rule 25 of the Central Excise Rule, 2002. Another Show Cause Notice dated 15/05/2008 was issued by the Respondent Commissioner invoking larger period of the limitation under proviso to section 11A(1) of the Act thereby proposing to demand/recover Excise duty totaling to ₹ 1,25,93,132/- on the scrap, unserviceable and condemned scooters and parts thereof, dismantled plant machinery which are sold by the appellant under invoice no. 1to 42 and 51to 371. The bank guarantee of ₹ 5 lak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant is not liable for any Excise duty. The appellant have sold the goods as waste and scrap. The duty on waste and scrap can be demanded only if such waste has arisen during course of manufacturing activity of excisable goods which is not the case here, as appellant is only a purchaser of goods in auction and seller of the same. He submits that this issue has come up before the Tribunal in many cases and it was consistently held by the Hon ble Tribunal that waste Scrap arising during the course of dismantling the machinery, etc. and also during the repairs and maintenance of old and used machinery equipments was not excisable. He placed reliance on the following judgments: 1. Grasim Industries Ltd. vs. Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these facts were already in the knowledge of the department that the appellant is clearing the dismantled waste and scrap subsequent to the auction with the plea that the appellant suppressed that fact from the department is misconceived. Therefore, the extended period of limitation cannot be invoked. As regard the redemption fine, he submits that since the goods were not available for confiscation, redemption fine cannot be imposed. He placed reliance on the following judgments: 1. Shivkrupa Ispat 2009 (235) ELT 623 (Tri-LB) 2. CC. Vs Raja Impex 2008 (229) ELT 185 (P H) 3. Duopont Synthetics 2010 (259) ELT 408 (tri.-Ahmd.) 4. Airport Authority of India 2016 (334) ELT 529 (Tri.-Che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital goods is amount to manufacture. Therefore, there is no basis in the department s proceedings to demand any Excise Duty from the appellant. As per the judgments cited by Ld. Counsel on behalf of the appellant it is settled that merely sale of parts by dismantling any capital goods is not liable for excise duty. As regard limitation, we find that the entire facts of purchase of goods under auction and sale thereof were well within the knowledge of the department. Therefore, the department if at all was of the view that any duty liability arise, they were free to issue a Show Cause Notice well within the normal period of limitation provided under section 11A (1). However, after having all the facts within the knowledge of the departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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