TMI Blog2008 (8) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty unjustified - E/2502/2007 - 552/2008-EX(PB), - Dated:- 1-8-2008 - Justice S.N. Jha, President and Shri M. Veeraiyan, Member (T) Shri Ravi Raghavan, Advocate, for the Appellant. Shri V. Choudhary, SDR, for the Respondent. [Order per : M. Veeraiyan, Member (T)].- This is an appeal against order of the Commissioner (Appeals) No. 395(HKS)CE/JP-II/2007 dated 27-7-2007. 2. Heard both sides. 3. The relevant facts, in brief, are as follows:- Appellants are engaged in the manufacture of zinc and lead zinc. They had received certain capital goods and took credit and utilized the said capital goods for the purpose of manufacture of excisable goods. Due to usage, some of the parts of the capital goods became unusable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Credit Rules, 2004 also. 5. Learned Advocate relied on judgments in the following cases: (i) Elphinstone Metal Rolling Mills v. CCE, Bombay , 2004 (167) E.L.T. 481 (S.C.) (ii) Alembic Limited v. CCE, Vadodara, 2007 (218) E.L.T. 52 (Tri.-Ahmd.) (iii) Larsen Toubro Limited v. CC CE, Rajkot, 2004 (173) E.L.T. 515 (Tri.-Mumbai) (iv) Tempo Instruments Equipments (I) Pvt. Ltd. v. CCE, Vapi, 2008 (225) E.L.T. 444 (Tri.-Ahmd.). 6. Learned DR reiterates the findings and reasoning of the Commissioner (Appeals). He relies on the decision of the High Court of Gujarat in the case of GNFC Limited v. Union of India reported in 2007 (214) E.L.T. 18 (Guj.), wherein it has been held that sale of old and usable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al goods the appellant is recovering a portion of the value arising as waste and scrap. 7.3 The Rule 3(5A) envisages that on the present value of scrap/waste an amount equal to duty leviable shall be paid. The classification have already been decided; the applicable rate of duty shall be the rate at the time of clearance of such waste or scrap; the value on which duty is payable is the present value will be on the date of clearance. 7.4 The case laws relied upon by the appellant relate to demand of duty treating the waste and scrap as manufactured items. Only, when the question of manufacturing arises, the section notes as mentioned in Section XV of Central Excise Tariff will become relevant. 8. We find that the demand of duty i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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