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TMI Blog2023 (3) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... e of fabrication of plant and machinery during the period from January, 2005 to September, 2005, October, 2005 to July 2006 and August, 2006 to October, 2006 respectively, and cleared the same on payment of duty and claimed refund of Rs.4,74,972/-, Rs.4,49,422/- and Rs.74,067/- during this material period and they were granted refund. The exemption under the said Notification is not available to any excisable commodity which is not manufactured in the units located in the area covered under the said Notification. The iron-scrap generated in the factory of the Appellant was not their manufactured product. Accordingly, the Department initiated proceedings for recovery of the amount refunded on the ground that the exemption in terms of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible for the refund and the refund made to the Appellant, had been erroneously allowed to them. 5. Thus, the claim of the Department is that for claiming the benefit of Notification No.33/99-CE, the Appellant were required to utilize whatsoever Credit available to them before paying anything from the Account Current for the goods manufactured and cleared during the material period. In the instant case, the Appellant paid the duty on the iron-scrap generated during the manufacture of the capital goods and paid the duty from the CENVAT Credit Account. To that extent they paid less duty in PLA for the cement cleared. 6. The Appellant submitted that they have manufactured capital goods and availed credit on the inputs. They have utilized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and scrap by utilizing the CENVAT Credit. The payment of duty on the scrap has not been questioned by the Department. The Department has only questioned the payment of duty by utilizing the CENVAT Credit availed. We find that the waste and scrap generated is also a product manufactured within the factory for which duty can be paid by utilizing the CENVAT Credit account. Hence, we hold that the payment of duty for the waste and scrap by utilizing the CENVAT Credit account was in order. For payment of duty for the cement, they have utilized the balance CENVAT Credit and the remaining duty through PLA. The refund claimed was only on the payment of duty through PLA for the cement, which is permissible as per Notification No.33/99-CE dated 08.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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