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TMI Blog2002 (5) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... bles in terms of sub-rule (5) of Rule 57F, imposing a penalty on this appellant for its failure to pay duty, and imposing penalties under Rule 209A on R.D. Matkar, Prem Kumar and A.V. Ajgaonkar, its employees. 2. The contention of the manufacturer was, and continues to be, that the provisions of sub-rule (3) of Rule 57F, permitting removal of inputs as such or after being partially processed, for repair, reconditioning etc. and return to the factory for being used as inputs by it (in the manufacture of the final product) would be available. The Counsel for the appellant draws our attention to the decision of the Larger Bench of the Tribunal in Wyeth Laboratories Ltd. Ors v. CCE, Bombay Ors, [2000 (120) E.L.T. 218 (T - LB) = 2000 (39) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e final product by utilising the facilities available in his premises or by sending them out on job work to other places. Only when final product is no longer profitable or technologically possible, a manufacturer would treat such resultant stage of by-product, refuse, scrap to be no longer useful and therefore a waste. In this view, the word waste used in Rule 57F(4) [which corresponds to sub-rule (2)] Rule 57F(5) has to be understood to denote a form of inputs after partially, full or reprocessing could not in a technologically/commercially feasible manner be converted to a final product or desired to be converted further. Thus, what would be waste for a manufacturer may not be a waste in the case of another manufacturer, even in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mains with the manufacturer and is not lost by a change in form of the input, due to processing. 5. The two decisions of the Chennai Bench have refused to apply the ratio of this decision on their view that the Larger Bench decision related to waste in regard to metal. These decisions convey a perception suggestion that the Larger Bench s decision relied upon the provisions of Note 8(a) to Section XV of the tariff metal waste and scrap from the manufacture or mechanical working of metal, and metal goods definitely not usable as such because of breakage, cutting up, wear or other reasons. 6. We are not able to perceive the decision of the Larger Bench as being limited to metals. The portion of the order that we have quoted expressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re have to be considered as scrap. The words definitely not usable as such in the definition obviously refers to these goods. They would have no application whatsoever to waste and scrap arising from the manufacture or mechanical working of metal. The basis for limiting the operation of the Larger Bench s order to metal scrap is not usable as such therefore falls. There is therefore, no basis of limiting the applicability of the Larger Bench s decision to metal alone. 8. In our respectful view, the Larger Bench decision requires reconsideration. Rule 57F (3) apply to inputs removed as such or after partial processing. Whether scrap metal, plastic etc. which arises in the course of manufacturing involve these inputs create identity as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods and this was the decision taken in Mumbai in Chloride Industries Ltd. v. Collector - 1993 (63) E.L.T. 633. This decision was passed in 1992. A number of other decisions of the Tribunal [Press N. Forge v. Collector - 1994 (74) E.L.T. 894] took the same view. It is only in 1996 that the question was referred by the Chennai Bench in Collector v. Mercury Fittings - 1996 (86) E.L.T. 285 to the Larger Bench. 11. In the light of this position in law and in view of the fact that the appellant had made known to the department, more than once, its decision to clear the goods in which it did not suppress any information, we are of the view that the extended period of limitation would not apply. The demand is therefore barred by limitation a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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