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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 ..... not possible to hold that CESTAT had committed any error in law while passing the impugned order - In absence of any legal infirmity no interference was called for in the order. Waiver of Pre-Deposit - The contention of the learned Counsel for the petitioner that by dint of the fact that the petitioner was registered as a sick unit with the BIFR, the petitioner was entitled to full waiver of the amount of pre-deposit, does not merit acceptance - no infirmity can be found in the impugned orders of the Tribunal so as to warrant any intervention by this Court – Keeping in view the applications filed under Sec.35F of CEA,1944, and also keeping in view the interest of Revenue -the applicant was directed to deposit of 25% - upon such submission rest of the duty to be waived till the disposal. - Appeal No.Ex.Ap.520-522/11 - ORDER NO.S-164-166/KOL/13 - Dated:- 29-4-2013 - Dr. D.M. Misra and Dr. I.P. Lal, JJ. For the Appellant: Shri A. D. Ray Shri S. Mishra, Advocates For the Respondent: Shri S. Misra, Addl. Commr.(A.R.) ORDER Per Dr. D.M. Misra; 1. These three applications are filed seeking waiver of pre-deposit of duty of Rs.2,23,63,091/- and Rs.34,14,010/- an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submitted that the Applicant No.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 facts of the present case. The Ld. A.R. further submitted that the applicant had availed CENVAT Credit amounting to Rs.35,44,010/- on duty paid scrap of aluminium wires and cables received from Baripada Unit, itself makes it clear that the said goods were liable to excise duty. Besides, even though the applicant had availed CENVAT Credit of the duty paid by Baripada Unit on the scrap of said wires and cables, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch decision of the Tribunal in the case of M/s. Finolex Cables Ltd.(cited supra). We order accordingly and set aside the impugned Order and allow the Appeal. 6. The contention of the Revenue is that after amendment to the definition of excisable goods prescribed under section 2(d) of the Central Excise Act, these judgements would no more become good law. Prima facie, we do not agree with the contention of the Revenue inasmuch as the applicability of the amended provision has to be analyzed in the context. It is possible only after an interpretation of the earlier provision vis-`-vis the present one, so as to arrive at a conclusion that whether the said amendment is applicable or otherwise. Thus, the applicant could able to make a prima facie case for waiver of pre-deposit of duty of Rs.2,23,63,091/- and equal amount of penalty relating to the removal of scrap generated during 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 cannot accept the contention of the learned Counsel for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, Section 22 of the Sick Industries Act, provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution, distress or the like against any of the properties of the industrial company; (c) the appointment of a receiver in respect thereof, and (d) proceeding in regard to suit for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered under Section 35F of the Central Excise Act, 1944 does not fall under any of the above-mentioned categories in Section 22 of the Sick Industries Act. (7) Section 35F of the Excise Act is pari materia with Section 129E of the Customs Act, 1962. In light of the aforesaid authoritative pronouncem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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