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TMI Blog2009 (11) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... for the maintenance of machines installed in their factory. These goods are exempted under Notification No. 65/95 dated 16-3-1995, provided that the goods are used within the factory for repairs or maintenance of machinery installed therein. While manufacturing these excisable goods, scrap was generated, which was cleared outside the factory. No exemption is available to the scrap, which was generated and cleared. The appellant had cleared the scrap under commercial bills without payment of duty. The proper accounts of the goods manufactured in the workshop were not maintained. They have also dismantled old and used machinery and sold them as scrap without paying duty. The department considered this as a manufacturing activity and felt tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to pay any duty. Secondly, the demand was issued on the basis of the Audit Objection after the limitation period. The penalty is imposed under Rule 25 without invoking the specific clause of this Rule. Further, the penalty was increased by the adjudicating authority by issue of the corrigendum which is not permissible under the Law. To support her contention, she placed reliance on the following decisions : - (i) Uttam Biscuit Company Pvt. Ltd. v. CCE, Hyderabad - 2007 (78) RLT 282 (CESTAT-Bang.). (ii) Hindustan Lever Ltd. v. CCE, Vapi - 2007 (210) E.L.T. 9 (Tri.- Ahmd.). (iii) Amrit Foods v. Commissioner of Central Excise, UP - 2005 (190) E.L.T. 433 (S.C.). (iv) Panasonic Carbon India Co. Ltd. v. Commissioner of Central Excise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries of the machines. On being further asked about the sale of waste and scrap I sate that the same is carried out in open market by auction treating as MS heavy scrap, CT scrap, turning scrap and issued on the private bills. On being further asked about the payment of duty I state that we have not paid central excise duty on heavy scrap and CT scrap on the presumption that the activity of manufacture is not involved. The scrap generated is out of the capital goods on which no Modvat credit is availed. The above said goods are cleared on 12-7-2004 before the insertion of sub-rule 5(A) of Rule 3 of Cenvat Credit Rules, 2004." From the above, it is clear that the demand has been raised against the appellant only on the portion of waste and s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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