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TMI Blog2013 (10) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... 25,00,000/- on Shri Udayan Roy, applicant No.3. 2. The Ld. Advocate for the applicant narrating the facts of the case, has submitted that the applicant are engaged in the manufacture insulated electric wires and cables falling under chapter 85 of C.E.T.A., 1985, out of copper and aluminium rods, coils. During the course of manufacture of their finished goods namely insulated wires and cables scrap of wires & cables are generated. The said scrap has been sold by the applicant without payment of excise duty, considering the same, as non-excisable goods. The Ld. Advocate has submitted that time and again various departmental authorities had ruled in their favour observing that the scrap of wire and cable, generated during the course of manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.1 is under B.I.F.R. and their net worth being negative and no deposit should be asked from them in terms of the ruling of the Hon'ble Supreme Court reported as 2010 (256) E.L.T. (A-61). 4. Per contra, the Ld. A.R. for the Revenue has submitted that the judgements referred to by the Ld.Advocate on the issue of excisability of scrap of copper and aluminium wires and cables would not be applicable after a specific amendment brought into the definition of excisable goods as prescribed under section 2(d) of the Central Excise Act, 1944 w.e.f. May, 2008. Distinguishing the judgement in Bhusan Steel Ltd.'s case (supra), the Ld.A.R. submitted that the issue in the said case relates to excisability of 'Zinc dross' and hence not applicable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. We find that the issue of excisability of scrap of wires and cables generated during the course of manufacture of insulated cables and wires falling under chapter 85 of C.E.T.A., 1985 has been decided in favour of the applicant by this Tribunal in their own case. This Tribunal has observed as under :- 3. We have heard the learned SDR, Shri J.A. Khan who refers to the decision of the lower Appellate Authority to point out that marketable short length wires and cables are not to be confused with waste and scrap which are excisable, as held in the case of Hitech Cable v. C.C.E. 1996 (86) E.L.T. 88 (T). However, we do not find any material either in the show cause notice or in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the course of manufacture of electrical insulated wires and cables. The second allegation of the Revenue is that the applicant had received duty-paid scrap of wires and cables from their Baripada Unit and availed CENVAT Credit on the same, but cleared the same against commercial invoice without discharging duty or reversing the CENVAT Credit availed on such scrap of wires and cables. We find force in the arguments of the Ld. A.R. for Revenue that mere pendency of the application before B.I.F.R. cannot by itself cannot be a ground for total waiver of pre-deposit of duty & penalty required to be deposited as per Section 35F of Central Excise Act,1944; and the judgement of the Hon'ble Supreme Court in Sagarika Accostronics Pvt. Ltd. case( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T. 7 (S.C.)]. 9.?In the case of Indu Nissan Oxo Chemicals (supra), this Court while dealing with a similar issue has considered the aforesaid decisions of the Supreme Court and held as follows : (6) In the case of Metal Box India Ltd. (supra) the Supreme Court was called upon to consider the question whether the Tribunal was justified in dismissing the Appeal on the ground that the amount which was required to be deposited u/s. 35F of the Central Excise Act, 1944, was not deposited within the period allowed by the Tribunal. While rejecting the contention raised on behalf of the assessee appellant before the Supreme Court it is laid down by the Apex Court as under : (a) We are afraid, we c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is a conflict between two decisions of the Apex Court, the view expressed in the later decision must prevail, more so when the same directly deals with the issue. Rest of the decisions are by different Benches of the High Court and have been rendered without considering the judgment in case of Metal Box India Ltd. (supra). 10. The aforesaid decision is squarely applicable to the facts of the present case. In the circumstances, the contention of the learned Counsel for the petitioner that by dint of the fact that the petitioner is registered as a sick unit with the BIFR, the petitioner is entitled to full waiver of the amount of pre-deposit, does not merit acceptance. In view of the findings recorded hereinabove, as well as in the light o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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