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TMI Blog2007 (8) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... dvat credit of duty paid on scrap obtained by breaking up of imported ship, boat and other floating structures, in terms of provisions of Notification No. 5/94-C.E. (N.T.), issued under the provisions of Rule 57A of Central Excise Rules. The appellants have availed the credit of actual amount of duty paid on the ship breaking scrap. However, Revenue's grievance is that in terms of proviso 2 to said notification, the credit is limited to the extent of Rs. 920 per tonne or actual duty paid, whichever is less. In-as-much as the actual duty paid was more than Rs. 920 per tonne, the authorities below has restricted the credit to the extent of Rs. 920 per tonne and consequently has confirmed the demand by denying the excess credit. The said orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal) (g) CCE, Chandigarh v. B.P. Alloys P. Ltd. - CEGAT New Delhi s Order No. A/433/96-NB, dated 29-1-2006. 4. On the other hand, learned SDR relies upon the Tribunal decision in case of Sardar Steel Mills v. CCE, Indore - 2002 (147) E.L.T. 518 (Tri.-Del.) which is to the effect that the restriction envisaged in the said proviso would apply to the scrap from breaking of imported ship also. 5. In his rejoinder, learned advocate submits that the said order of the Tribunal was passed without taking note of the earlier decision of the Tribunal and as such, can be held to be a per incurium decision i.e. a decision through inadvertent. It was held in the case of Punjab Land Development Corporation Reclamation Corpn. Ltd. v. Presiding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the credit originally from breaking up of indigenously manufactured ships or boats etc. To the same effect, are the various decisions of the Tribunal as listed supra. 7. As such, we agree with the learned advocate that the sole judgment in case of Sardar Steel Mills having not taken note of the earlier judgment, can be considered as a per incurium decision. 8. Apart from the above, we find that various clarifications and trade notices issued by the Ahmedabad Commissionerate as also Chandigarh Commissionerate, are to the effect that such restriction is applicable only in respect of scrap originated by breaking up of Indian manufactured ship. It is, by now, well settled law that Revenue cannot take stand against the instructions or clarif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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