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TMI Blog2005 (11) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... are manufacturers of electric bulbs and tubes. They avail of Modvat facility on the duty paid glass shells. Duty/reversal of credit wrongly taken was demanded from them and a penalty was imposed. 3. Shri M.V. Venkateshwaran and S.V. Kulkarni are the Senior Executives of Wipro Limited. Penalties are imposed on them under Section 209A of Central Excise Rules. 4. The three appellants are aggrieved by the order of the Commissioner. The Revenue also is in appeal against the same order. It is a case where nobody is happy. We first deal with M/s. Wipro's appeal. We divide the issues in the same manner as the Commissioner did in the impugned order. The period involved is 1994-95 to January 1997. The show cause notice was issued in Augus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, held that duty is payable on such paper scrap. The appellant contends that he is not required to pay duty on such paper scrap, as such paper scrap is not the result of a process of manufacture. It was argued that the Commissioner's order, demanding Rs. 93,709.97 (Rupees Ninety three thousand seven hundred nine and paise ninety seven only) towards duty on the paper scrap is not tenable. The Ld. DR, on the other hand contends that duty is payable on waste paper under Chapter heading 47.02 of CETA as that such waste has arisen out of process of manufacture. We observe that except a bare assertion that the waste paper in question emerged during the course of manufacture, no evidence has been discussed in this regard in the impugned order. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. The statement of the concerned person also supports the Department's contention that credit was taken on inputs, which did not really exist. We uphold the Commissioner's contention that proportionate Modvat credit is required to be reversed. (e) Capital goods on Electrostatic Power Coating machine and sealing machine : The Commissioner denies credit quoting Rule 57Q(5) of the relevant time which says the credit shall not be allowed, if such capital goods were received in the factory before 1 day of March 1997. The appellant argues that while the machines were received in the factory prior to 1-3-97, they were put to use after 1-4-91 and therefore credit on the machines is available. It is their contention that the law as provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court in the case of ITC Limited v. Commissioner of Central Excise - 2003 (151) E.L.T. 246 (S.C.) held that stocks of cigarettes removed prior to packing but after they were fully manufactured, for quality control tests are liable to duty. The Hon'ble court comes to this conclusion after analyzing Section 2(d), 2(f) of Central Excise Act. We find that the ratio laid down in this decision is fully applicable in the present case. The appellants reliance on the Tribunal's Larger Bench decision in the case of Commissioner of Central Excise v. Dabur India - 2005 (182) E.L.T. 185 is not applicable in the light of the Supreme Court's decision in the case of ITC Limited (supra). We, therefore, uphold the contention of the Commissioner and ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order, we uphold the contention of the Commissioner that penalty is imposable on Shri S.V. Kulkarni and Shri Ventakeshwaran under Rule 209A. These appellants contention that they have not actually dealt with the capital goods liable to confiscation and therefore no penalty is imposable is rejected. Dealing with the goods liable to confiscation does not mean that the persons concerned should actually touch, handle and physically deal with such goods. It is enough if the persons concerned had given directions to their subordinates to act in a manner, which resulted in rendering the goods liable to confiscation. The appeals of the above said persons are accordingly rejected. 6. Now we take up Revenue's appeals. Revenue is aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X
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