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TMI Blog2000 (6) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... also been utilised while paying duty on the bearings cleared from the factory on payment of appropriate duty of excise. The bearings rejected, hammered and broken were removed without payment of duty as steel scrap on the assumption that the same were covered by the exemption under Clause (ii) of the proviso against serial No. 3 of the Table annexed to Notification No. 171/88-C.E., dated 13-5-1988. The Asstt. Collector of Central Excise, Shimla, took a view that the scrap arisen from breaking up of the bearings was eligible for the benefit of Notification No. 171/88-C.E. On appeal, the Collector of Central Excise (Appeals), held that the waste arisen due to hammering of bearings found unfit in the course of quality control was required to be cleared on payment of duty. 2. We have heard on 18-4-2000 Shri R. Swaminathan, consultant, for the appellants. He submitted that the Collector of Central Excise (Appeals) had gone beyond the original show cause notices and that the scrap in question was correctly covered by Clause (ii) of the proviso against serial No. 3 of the Table annexed to Notification No. 171/88-C.E., and even when Modvat credit had been availed of in respect of the inp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-1991 that the scrap had not arisen from the manufacture of Chapter 84 goods, but was a result of hammering and breaking up of the bearings which were classifiable under Chapter 84 of the Tariff. 4. Under Heading No. 72.04 ferrous waste and scrap; remelting scrap ingots of iron or steel, were described. In Section Note 6 of Section XV, the expression waste and scrap' was assigned the following meaning :- Metal waste and scrap from the manufacture or mechanical working of metals and metal goods definitely not usable as such because of breakage, cutting up, wear or other reasons. The expression 'remelting scrap ingots of iron or steel' was assigned the following meaning in Chapter Note 1(g) under Chapter 72 : Products roughly cast in the form of ingots without feeder heads or hot tops, or of pigs, having obvious surface faults and not complying with the chemical composition of pig iron, spiegeleisen or ferro-alloys. 5. From the facts on record, it is seen that the hammered and broken bearings were converted into scrap as a conscious decision by the appellants. The waste so obtained had not arisen from the bearings. The hammering and breaking was done after the bearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n from - (i) Goods covered by Chapter 72 (excluding slotted angles and slotted channels, and goods and materials of Chapter 72 or 73 obtained by breaking up of ships, boats and other floating structures); sheet piling of iron or steel, whether or not drilled, punched or made from assembled elements; welded angles, shapes and sections of iron or steel; rails, sleepers (crossties); tubes, pipes and hollow profiles of iron or steel; cast articles of iron or steel falling under heading No. 73.25; bottom stools, stirring or poking rods, splash plates and troughs; and ingot moulds falling under heading No. 84.54, on which duty of excise leviable under the said Schedule or the additional duty leviable under section 3 of the Customs Tariff Act, 1975 (51 of 1975) as the case may be, has already been paid, but the credit of such duty has not been taken under rule 56A or 57A of the Central Excise Rules, 1944; or all goods, falling within the said schedule other than the (ii) goods specified in clause (i) above and goods and materials of Chapter 72 or 73 obtained by breaking up of ships, boats, and other floating structures,- manufactured or produced (a) in India; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve arisen from the inputs i.e. steel strips and therefore waste and scrap, arising from processing of strip falling under CH 72 or from the semi-finished bearings falling under CH 84 would be subject to duty in terms of clause (i) of the condition of exemption against S. No. 3 of the Table to the said notification as the Modvat credit on strips was being availed. Thus, the Modvat credit was not a new issue. The same position is seen from the cross-objections at page 63 of the paper book and it is seen that the Modvat credit was very much an issue in these proceedings. 11. In this regard, the appellants have referred to a number of decisions which we consider that in the facts and circumstances of this case are not applicable. In the case of CCE, Aurangabad v. Assotex Engg. Inds. Ltd., 1999 (114) E.L.T. 715 (T), it was observed that a new case cannot be made out by the Revenue at appeal stage. In the case of CCE, Madras v. Standard Wire Rod Mills, 1999 (114) E.L.T. 995 (T), it was observed that the Revenue cannot take a new ground to deny the benefit of notification other than mentioned in the show cause notice. In the case of CCE, Vadodara v. L.D. Textiles Ltd., 1999 (114) E. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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