TMI Blog2020 (1) TMI 1449X X X X Extracts X X X X X X X X Extracts X X X X ..... down in the earlier case cannot be permitted to take a contra stand in the subsequent cases - It was therefore incumbent upon the Commissioner to follow the order dated 25.05.2004 of his predecessor, which had been accepted by the Department, and drop the proceedings in the instant case also, by following the principle of res judicata. The impugned order dated 27.03.2012 passed by the Commissioner of Central Excise, Haldia is set aside and the appeal of the appellant is allowed. - Excise Appeal No.444 of 2012 - FINAL ORDER NO. 75391/2020 - Dated:- 13-1-2020 - SHRI P.K.CHOUDHARY, MEMBER (JUDICIAL) AND SHRI P.ANJANI KUMAR, MEMBER (TECHNICAL) Dr. Samir Chakraborty, Senior Advocate Shri Abhijit Biswas, Advocate for the Appellant (s) Shri A.Roy, Authorized Representative for the Respondent (s) ORDER By the Order-in-Original No. 12/Commissioner/CE/Haldia/Adjn/2012 dated March 27, 2012 the Commissioner of Central Excise, Haldia has confirmed central excise duty demand of ₹ 17,15,01,421/, as credit was not reversed although was required to be reversed, under Rule 12 of the Cenvat Credit Rules, 2002 read with Section 11A(2) of the Central Excise Act, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department. The issues decided in the impugned order were duly considered and findings were given thereon in the said order dated 25.05.2004. Therefore, contrary stand cannot be taken in the present case on same allegations/grounds and the Commissioner has erred in doing so. In support, reliance has been placed on the following decisions: (a) CCE Vs. Novapan Industries Ltd., 2007 (209) ELT 161 (SC) (b) CCE Vs. Bigen Industries Ltd., 2006 (197) ELT 305 (SC) (c) Commr. of C.Ex. Cus Vs. Mundra Port Special Economic Zone Ltd., 2011 (21) STR 361 (Guj), para 7. (ii) The appellant was not granted an opportunity of personal hearing. Therefore the impugned order is violative of principles of natural justice and hence unsustainable. (iii) There is no provision requiring reversal of credit availed on inputs in waste and scrap arising in course of manufacture/ processing work carried out at job worker s end. Neither Rule 4(5)(a) nor Rule 4(6) of CCR 2002/2004 provide therefor. Rule 4(5)(a) of the Cenvat Credit Rules only refers to return of goods, duly processed, within the stipulated time period. The said rules are silent about the clearance of waste and scrap upon p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial on record we find that as per the correspondence of the appellant with the Range Superintendent, the duty on the subject waste and scrap generated at the job worker s end was in fact paid by the appellant, upon ascertaining the value thereof, taking the value of the processed scrap generated through similar operation at the appellant s factory and which the appellant sold on a regular basis, and invoice details in respect whereof were available. In the absence of any other evidence on record, this establishes the correctness of the transaction value of the waste and scrap sold. Hence, the contrary finding of the Commissioner is erroneous. Further, this method of valuation and payment of central excise duty on the subject waste and scrap pertaining to a part of the period involved was considered and accepted by the jurisdictional Commissioner in the earlier order dated 25.05.2004, which decision has been duly accepted by the Revenue. 6.1 In the case of Commissioner of C.Ex. Vs. Novapan Industries Ltd. (supra) it has been held by the Hon ble Supreme Court as under: 14. In view of a catena of decisions of this Court, it is settled law that the department having accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rker. 2. After hearing both sides for some time we find that Tribunal in the case of Rocket Engineering Corpn. Ltd. [2006 (193) ELT 33 (Tri-Mum)] has held that waste and scrap generated at job workers end subsequent to 1-4-2000 is not dutiable in the hands of principal manufacturer. The said decision of the Tribunal was confirmed by Bombay High Court as reported in CCE V. Rocket Engineering Corpn. Ltd. [2008 (223) ELT 347 (Bom)]. It stands clearly held in the said decision that no liability stand held on the principal manufacturer after 31-3-2000 to pay duty on the scrap generated at the job workers end. Following the said judgment, Tribunal, in the case of Emco Ltd. V. CCE, Mumbai-III [2008 (223) ELT 613 (Tri-Mum)] has held that waste and scrap generated at job workers end, duty liability cannot be fastened on principal manufacturer. To the same effect is the decision of Tribunal in the case of Preetam Enterprises V. CCE, Pune-II [2004 (173) ELT 26 (Tri-Mum)]. 3. Learned DR brought to our notice Tribunal s decision in the case of Mahindra Ugine Steel Co. Ltd. [2005 (192) ELT 781 (Tri- Mum)] laying down to the contrary as decided in other case. We note that period o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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