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TMI Blog2016 (8) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... e capital goods. Some portion of the scrap has also arisen on account of dismantling old and used machinery. It is also well settled that scrap arisen in such cases will not be liable to payment of excise duty as has been held by this Tribunal in many cases. - Decided in favour of appellant - Excise Appeal No. 295/2007-EX[DB] - Final Order No. 52404/2016 - Dated:- 15-6-2016 - Ms. Archana Wadhwa, Member (Judicial) and Shri V. Padmanabhan, Member (Technical) Shri Vipul Agarwal, Advocate for the appellant Ms. Kanu Verma, JCDR for the respondent ORDER This appeal is directed against the Order of the Commissioner (Appeals), Bhopal dated 6/12/2006. Since, this is the second round of litigation before this Tribunal, it is ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waste and scrap was generated from mechanical working on various material. It is well settled law is that the goods liable to duty if they arise as a result of a process of manufacture or production, that is, if they are a new and distinct commercially identifiable article as defined under Section 3 of the Central Excise Act, 1994. In this case party have sold the said waste and scrap under cover of invoice cum challan to the different buyers. Therefore it is clear that the scrap in question are marketable, hence comes under the category of goods and appropriately classifiable under CH. No. 7204.90 of Central Excise Tariff 1985 and also they are entitled for CENVAT Credit as eligible input. (iii) When taken up in appeal before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifiable under Chapter Heading 7204, in terms of Section 5 (a) of Section XV of CETA 85, was dutiable. The question as to whether the appellants had availed the Modvat Credit or not, cannot be decided here as copies of the documents which were not produced before the Adjudicating Authority, have been brought on record. Therefore, I have no option to send back the same to the Commissioner (Appeals) for fresh decision keeping in view the allegations made in the SCN and the plea taken up by the appellants. 2. In the de-novo proceedings, The Commissioner (Appeals) vide his order dated 6/12/2006 recorded findings as follows:- Though the appellant s contention of not availing Modvat/Cenvat Credit on the iron and steel materials has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of violation of principle of natural justice. The appellant has contended that the waste and scrap has arisen during repair and maintenance work of the capital goods. Some portion of the scrap has also arisen on account of dismantling old and used machinery. It is also well settled that scrap arisen in such cases will not be liable to payment of excise duty as has been held by this Tribunal in many cases, for example:- 1. Commissioner of Central Excise, Jaipur-II V. Birla Corporation Ltd., 2005 (181) ELT 263 (Tri.-Delhi) 2. Grasim Cement v. CCE Raipur, Final Order No. A/53712/2015-EX[DB] dated 02.12.2015 3. CCE, Jaipur-II v. Gujarat Ambuja Cement Ltd., Final Order No.: A/50190/2016-EX[DB] dated 05.02.2016 6. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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