9911796707
TMI Blog1992 (12) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... ng under sub-heading 8544 CET and in such manufacture they use aluminium falling under Heading 7603.10 and copper under Heading 7403.19. They were availing MODVAT credit of duty paid on the wire rods (additional duty leviable under the Customs Tariff Act) scrap of electric wires and cables were being cleared without payment of duty in terms of circular No. 7/Electric wires and cables dated 6-7-1964 of the Central Board of Excise and Customs by following the procedure prescribed in the circular. The appellants filed a classification list on 6-3-1988 indicating processed scrap of electric wires and cables at Nil rate of duty at Sl. No. 7. Before any action was taken on the classification list, the Departmental officers visited the factory and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d perused the records. 4. The findings of the Collector regarding admission of dutiability of scrap (uptil 18-12-1986) is not correct in view of the fact that the appellants had shown the rate of duty as Nil in their classification list and they paid duty only after the show cause notice was issued under the belief that the Circular No. 7 dated 6-7-1964 had been withdrawn. There was no question of duty paid voluntarily and even if duty was paid voluntarily the appellants have a right to ask for refund upon realisation no duty was payable. There is also no basis for the finding that the appellants had not produced any evidence to indicate that aluminium and copper received by them had paid the additional duty leviable under the Customs T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been made out with reference to sub-rule (4) although the same has not been specifically mentioned. 7. This sub-rule reads as follows : - Any waste, arising from the processing of inputs, in respect of which credit has been taken may - (a) be removed on payment of duty as if such waste is manufactured in the factory; or (b) be removed without payment of duty, where it belongs to such class or category of waste as the Central Government may from time to time by order specify for the purpose for being used in the manufacture of the classes or categories of goods as may be specified in the said order subject to the procedure under Chapter X being followed; or (c) be destroyed in the presence of proper officer on the applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not controverted by the learned DR. 9. They have also shown that in the classification list effective from 1-3-1986 submitted by them to the department they had indicated nil rate of duty and therefore it was upto the department to either object or accept this claim at the time of approval of the classification lists. 10. They have also shown that the accounts were being maintained in theformofRG23Al. 11. They have also contended that they had declared the items under 85.44 but the officers had put them under 76.02 and indicated Notification Nos. 172/84 and 182/84 (instead of 33/81 mentioned by them). The classification list had been verified and finally approved with the remark that the assessee was required to debit the credit if al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions [as 172/84 (as amended) or 182/84 (as amended)], even though modvat credit may have been taken. 15. Ministry s letter of course refers to some opinion of the Attorney General. However, it does not spell it out and merely refers to the Board s letter dated 20-12-1985. Further neither this letter nor the opinion of the Attorney General has been placed before us. This is apart from the fact that these have neither been referred to in the Collector s orders nor any pleadings been advanced with reference to them before us. Even otherwise a simple letter of the Ministry/Board by itself does not have the force of law. Be that as it may. In so far as the present case is concerned the grounds on which the learned Collector has denied them re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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