9911796707
TMI Blog2014 (5) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... material facts leading up to this appeal are as follows : The respondent-assessee M/s. Swarnagiri Wire Insulations Private Limited engaged in manufacture of enamelled copper wire falling under chapter sub-heading No. 8544.90 of CETA, 1985 and are availing the facility of Cenvat credit. On gathering information from the intelligence that the assessee has removed waste and scrap of copper arising out of inputs on which Modvat/Cenvat credit has been availed, without payment of duty for job work, visited the factory premises along with the staff on 14-8-2003 and verified the records. On verification of records it was found that scrap of copper weighing 4,500 kgs valued at Rs. 3,75,000/- had been removed without paying the duty and the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in excess of material received and returned to the principal manufacturer in terms of Rule 6 of Cenvat Credit Rules and the question of demanding duty on this scrap/wastage does not arise as there was no proposal for the same in show cause notice and admittedly the appellants are paying duty on scrap cleared by them from time-to-time and no interest or penalty could be levied and accordingly, the impugned Order-in-Appeal was set aside and the matter was remitted to the Commissioner by the appellate authority. Thereafter, de novo Order-in-Original has been passed as per Annexure "A" on 29-3-2006 holding that there is loss to extent of 2.04% by weight of copper, which is liable for suffering appropriate duty and accordingly confirmed and de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of 2.04% which was made good by the material used for enamelling the copper wire and wherefore the order passed by the CESTAT is liable to be set aside and substantial question of law be answered in its favour since scrap material has been removed without paying duty by following the decision in Wyeth Laboratories Ltd. v. Collector of Central Excise, Bombay - 2000 (120) E.L.T. 218 (Tribunal-LB). 5. The learned counsel for the respondent submitted that there was no proposal in the show cause notice imposing penalty and duty on the scrap material that was used without payment of duty. However, the order i.e., passed is in respect of the loss of copper to the extent of 2.04% and payment of duty and penalty is on the said loss of coppe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 (120) E.L.T. 218 (Tribunal-LB) would show that in the said case removal of waste for melting which is generated in the process of working on ingots were removed without payment of duty and wherefore the duty and penalty was imposed which was upheld and therefore the said decision is not applicable 10 the assessee in the present case and is also not helpful to the appellant revenue to contend that the order passed by the CESTAT is erroneous and wherefore the order passed by the adducting authority should be restored. Accordingly, we hold that the order passed by the CESTAT setting aside the order passed by the adjudicating authority and allowing the appeal filed by the assessee is justified and accordingly answer the substantial question ..... X X X X Extracts X X X X X X X X Extracts X X X X
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