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TMI Blog2010 (11) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... rolled SS pattas/patties which got used in manufacture of scrap would be eligible for duty exemption - Hence, the evidence regarding the quantity of such scrap cleared on payment of duty has to be produced by the Appellant. Demand of duty - As regards the adjustment of the amount of 8% of the sale price of SS utensils under Rule 57CC against the duty demand on cold rolled SS pattas/patties, since once the duty is collected at the stage of cold rolled SS pattas/patties, no amount would be payable under Rule 57CC in respect of clearances of the exempted goods -SS utensils - Disallowing this adjustment is not correct - Held that: the matter is remanded to the original adjudicating authority for re-quantifying the net duty demand. - E/2535 and 2537/2007 - 809-810/2010-EX(PB) - Dated:- 23-11-2010 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri Atul Gupta, Advocate, for the Appellant. Shri Sunil Kumar, DR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. - The facts giving raise to these appeals are, in brief, as under : 1.1 The Appellant receive duty paid Stainless Steel flats(SS flats) in respect of which Cenvat credit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition of penalty on the Appellant under Rule 173Q of the Central Excise Rules, 1944. Total duty demanded by these two show cause notices was Rs. 51,61,284 (Rs. 48,57,172 + Rs. 3,04,112/-). The show cause notices were adjudicated by the Dy. Commissioner vide order-in-original No. 37/DL/02, dated 26-4-02 and No. 77/DC/02, dated 29-7-02 by which the duty demands of Rs. 48,57,172/- and Rs. 3,04,112/- respectively were confirmed and penalty of Rs. 5 lakhs and Rs. 50,000/- respectively was imposed on the Appellant under Rule 173Q(1) of the Central Excise Rules, 1944. 1.3On appeals being filed to Commissioner of Central Excise (Appeals), the CCE (Appeals) vide order-in-appeal No. 429/AKG/PCK/03, dated 1-9-03 and No. 430/AKG/PCK/03, dated 1-9-03 while upholding the duty demands held that the amount at 8% of the sales price paid in respect of clearances of SS utensils must be adjusted against the duty demands; and set aside the penalties imposed on the Appellant under Rule 173Q(1). 1.4The Appellants filed appeals to Tribunal against the above mentioned orders-in-appeal of CCE (Appeals) which were disposed off by the Tribunal by common final order No. 622-628/04-B, dated 25-3-04 by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in the Tribunal s remand order dt. 25-3-04 by observing that conversion of SS flats into SS patta/patti is not merely a process of cold rolling but involves hot rolling also. (3)When the adjustment of 8% was already allowed in earlier orders-in-appeal dated 1-9-03 which were not challenged by the Department, the same attained finality. Therefore, this issue could not be re-opened and the impugned order-in-appeal disallowing the adjustment of 8% of the sale price of utensils is wrong. (4) The scrap arisen is manufacture of SS circles for utensils from SS Pattas/patties was being cleared on payment of duty. Therefore, the benefit of Notification No. 67/95-C.E. in respect of SS pattas/patties, which went into scrap cleared on payment of duty cannot be denied. 2.2 Shri Sunil Kumar, the learned Departmental Representative, pleaded that the issue involved in this case is as to whether the cold rolling of hot rolled products amounts to manufacture, that this issue is no longer res intengra, as the same has been decided by the Tribunal by a detailed order in case of Bharatbhai B. Gala v. CCE, Ahmedabad-I reported in 2007 (214) E.L.T. 419 wherein the Tribunal held that cold rollin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under Notification No. 67/95-C.E., as this exemption is not available if the finished products are fully exempt from duty or are chargeable to nil rate of duty, except for certain exceptions, as mentioned in the notification and this case is not covered by those exceptions. However if the scrap generated in course of manufacture of SS circles for utensils from cold rolled SS pattas/patties had been cleared on payment of duty, the quantity of Cold rolled SS pattas/patties which got used in manufacture of scrap would be eligible for duty exemption under Notification No. 67/95-C.E.. But since on this point, though raised before CCE (Appeals), there are no findings in the impugned order in appeal, the fact of clearance of scrap on payment of duty has to be ascertained and if the scrap had been cleared on payment of duty, the quantum of exemption available in respect of quantity SS pattas/patties got converted into scrap in course of manufacture of SS circles for utensils, of heading 7222.50 has to be worked out, which has to be done by the original adjudicating authority. But the evidence regarding the quantity of such scrap cleared on payment of duty has to be produced by the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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