TMI Blog2022 (11) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... se Notice is bald and without any support of any evidence. It is clear that the appellant have cleared the scrap which is neither generated from the manufacturing nor generated from the cenvatable input or capital goods. Therefore, the same is clearly not liable to any duty. The identical issue was raised in the appellant s own case only for the different period wherein taking a consistent view it was held that scrap, other than manufacturing and non cenvatable is not liable to duty - reliance can be placed in the case of ALEMBIC GLASS INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., VADODARA-I [ 2006 (2) TMI 322 - CESTAT, MUMBAI] where it was held that Since the entities on which duties have been recovered are not emerging otherwise then skilful manipulation of raw materials, appellants by manufacture of medicaments, the levy of duly, as arrived at cannot be upheld. Thus, in the facts of the present case, it is clear that the demand raised in the SCN is not sustainable - appeal allowed - decided in favor of appellant. - EXCISE Appeal No. 11232 of 2015 - FINAL ORDER NO.A/11370/2022 - Dated:- 14-11-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNIC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mills Ltd.-2005 (183) ELT 318 (Tri.- Del.) GSFC Ltd. 2019 (9) TMI 669- CESTAT AHMEDABAD Nizam Sugar Factory 2008 (9) STR 314 (S.C) 3. Shri Prakash Kumar Singh, Learned Superintendent (Authorized Representative) appearing on behalf of the revenue reiterates the finding of the impugned order. 4. We have carefully considered the submissions made by both the sides and perused the records. We find that the demand was raised on all the scrap sold by the appellant value of which is reflecting in the balance sheet. The appellant while giving the information, as asked by the department vide their letter dated 06.03.2013, in their letter dated 11.03.2013 categorically stated that they have paid the excise duty on manufacturing scrap and cenvatable scrap, they also stated that on the general scrap which is neither manufacturing scrap nor cenvatable scrap, they have not paid the duty. As per this submission of the appellant the duty is clearly not payable. Moreover, the Show Cause Notice was baldly issued without carrying out any investigation that whether the appellant have availed the Cenvat Credit in respect to the scrap which were cleared without payment of duty and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td:- 2007 (218) ELT. 52 (Tri.-Ahmd.) 5. We have considered the submissions carefully. The appellant is only a manufacturer of pharmaceutical products. They are not in the manufacture of scrap out of old and used machinery; we find that their case is covered by the decisions relied upon by the learned Advocate. We hold that the scrap of packing material and of old and used capital goods which are cleared by them cannot be considered as scrap arising out of the manufacture of pharmaceutical products and hence they are not liable to excise duty. 6 . The appeal is allowed with consequential relief, if any. Alembic Industries Ltd : 2009(233) ELT 392 (Tri- Ahmd.) 3 . After hearing both the sides, we find that as regards the waste and scrap of packing material, appellate authority has relied upon Hon ble Supreme Court s decision in the case of M/s. West Coast Industries [2003 (155) E.L.T. 11 (S.C.)]. The Revenue has not contended that the above decision is inapplicable to the facts of the present case. 4. As regards the other waste and scrap, we find Commissioner (Appeals) has made a detailed order, supported by various decisions and has arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in the subject or context, - (a) to (c) .. . . (d) excisable goods means goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as being subject to a duty of excise and includes salt; Explanation - For the purposes of this clause, goods includes any article, material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable. It is seen that said Section has not application in the instant case. The Section 2(d) defines the excisable goods and to be excisable goods, is to be first manufactured. The goods coming into existence as by-product during the process of manufacture cannot be treated as manufactured goods. The appellant placed reliance on the following decisions:- (a) Hindalco Industries Limited vs. UOI 2015 (315) ELT 10 (Bom.) (b) Hariyana Steel and Power vs. CCE 2015 (11) TMI 771 CESTAT We find that in the case of Hindalco Industries Limited (supra) the Hon'ble Bombay High Court has held as follows:- 20. The Hon ble Supreme Court finally in para 22 agrees with its earlier view in the case of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or chapter notes of the tariff schedule as amounting to manufacture. It is clear that the legislature realised that it was not possible to put in an exhaustive list of various processes but that some methodology was required for declaring that a particular process amounted to manufacture. The language of the amended Section 2(f) indicates that what is required is not just specification of the goods but a specification of the process and a declaration that the same amounts to manufacture. Of course, the specification must be in relation to any goods. .. 23. We are in agreement with the submission that under the amended definition, which is an inclusive definition, it is not necessary that only in the section or chapter note it must be specified that a particular process amounts to manufacture. It may be open to so specify even in the tariff item. However, either in the section or chapter note or in the tariff entry it must be specified that the process amounts to manufacture. Merely setting out a process in the tariff entry would not be sufficient. If the process is indicated in the tariff entry, without specifying that the same amounts to manufacture, then the indication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible or commercially inexpedient. This Court has in several decisions starting from Tungabhadra Industries v. CTO, AIR 1961 SC 412, Union of India v. Delhi Cloth General Mills Co. Ltd., AIR 1963 SC 791 = 1977 (1) E.L.T. J199 (S.C.), South Bihar Sugar Mills Ltd. v. Union of India, AIR 1968 SC 922 = 1978 (2) E.L.T. J336 (S.C.) and in line of other decisions has explained the meaning of the word manufacture thus: 14. The Act charges duty on manufacture of goods. The word manufacture implies a change but every change in the raw material is not manufacture. There must be such a transformation that a new and different article must emerge having a distinctive name, character or use. .. 14. In the present case, it is clear that the process of repair and maintenance of the machinery of the cement manufacturing plant, in which M.S. scrap and Iron scrap arise, has no contribution or effect on the process of manufacturing of the cement, which is the excisable end product, as since welding electrodes, mild steel, cutting tools, M.S. Angles, M.S. Channels, M.S. Beams etc. which are used in the process of repair and maintenance are not raw material used in the process of man ..... 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