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TMI Blog2014 (8) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... sion application be filed under Rule 49 of erstwhile Central Excise Rules, 1944 - No reason to interfere with the said order which is in consonance with the principle of law laid down - Decided against assessee. - Excise Appeal Nos.609,350/2007 - FINAL ORDER NO.FO/A/75186-75187/2014 - Dated:- 29-1-2014 - D M Misra And I P Lal, JJ. For the Appellant : Shri S P Pal, Appraiser (AR) For the Respondent : Shri Ravi Raghavan, Adv. PER : D M Misra These Appeals are filed by the Assessee, M/s Eveready Industries India Ltd. and also by the Revenue against the Orders-in-Appeal No.38/Kol.-I/07 dated 27.07.2007 07-08/Kol.I/07 dated 09.01.2007, passed by Commr. of Central Excise (Appeals), Kolkata, respectively. The issues involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 27th July, 2007, the ld. Commissioner (Appeals) different from the earlier observation and held that waste scrap generated during the course of manufacture, are chargeable to duty. Hence, aggrieved by the respective orders, both Assessee as well as Revenue are in Appeal. 4. The ld. Advocate for the Appellant, submitted that the scraps were generated at the stage of baking of Arc Carbon due to breakage on surface defects and hence, becomes unusable and it occurs before reaching the finished stage and accordingly, the same are hammered broken into small bits. It is his contention that similarly, in respect of waste and scrap of unbaked Carbon (Broken Hammered/Crushed), these scraps are generated at the stage of extrusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also incorrect to classify the product under Heading 28.03 as the present goods are merely waste and scrap and are not primary products. Further, he submitted that there is no specific entry for waste and scrap of carbon, accordingly, the goods cannot be classified under Chapter Heading 28.03 of CETA, 1985. 6. The ld. A.R. for the Revenue, reiterated the findings of the ld. Commissioner (Appeals) dated 27.07.2007. He submitted that the ld. Commissioner (Appeals) in his order dated 09.01.2007, erroneously held that waste and scrap arose during the manufacture of finished product, are non-excisable/non-dutiable since these are not classifiable. The ld. A.R. submits that during the material time, waste and scrap of carbon were covered under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of manufacture of excisable commodity Projector/Cinema are carbons, dry cell electrodes. It is not department's case to establish that the appellants resorted to conscious breaking and hammering of defective are carbon into waste to avoid dutiability. Rather, it is the residue, broken pieces, waste and various mixed scrap arose as unusable scrap and unsuitable for further use in the process of manufacture of finished goods. I find logic in appellant's contention that a factory is not set for production of waste/scrap and such waste/scrap arises in spite of factory's effort to prevent their appearance because the rejects are incapable of fetching the pieces of the prima products. Following the decision of Apex Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able. Another issue remains to be resolved i.e. whether the appellants availed unintended benefit by availing credit on input material contained in such waste/scrap. I am inclined to mention below the context of Rule 57D (1) of Central Excise Rules, 1944 in this regard Credit of specified duty shall not be denied or varied on the ground that part of the inputs is contained in any waste, refuse or by-product arising during the manufacture of the final product, or that the inputs have become waste during course of manufacture of the final product, whether or not such waste or refuse or by-product is exempted from whole of the duty of excise leviable thereon or chargeable to nil rate of duty or is not specified as final product under R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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