9911796707
TMI Blog2008 (8) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, Metal waste and Scrap which arise from the manufacture or mechanical working of metals, and metal goods definitely not usable only can be considered as scrap attracting excise duty. The waste and scrap cleared by them are not arising out of manufacture and they are not mentioned in the Central Excise Tariff and, therefore, no duty is leviable. 4.2 The levy of duty is sought to be made in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 modvated capital goods are leviable to duty in terms of Rule 3(5A) of the Cenv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich Cenvat credit has been allowed by the Cenvat Credit Rules and availed by the appellant. One of the conditions is that when waste and scrap arising out of capital goods are removed an amount equal to the duty leviable shall be paid. Rule 3(5A) does not envisage any classification of waste and scrap being cleared by the person who has availed Cenvat credit on the capital goods. The classificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 is legal. However, this being an issue involving mere legal interpretation, there is no warrant for imposition of penalty. Appeal is disposed off by upholding the demand of duty along with interest and setting aside the penalty imposed on the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
