9911796707
TMI Blog2017 (3) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... they cleared coated film waste arising during the course of manufacture of x-ray films without payment of central excise duty. Since the said waste and scrap arises out of the manufacture of x-ray films it is classifiable under CTH 3915.00 and the appellant had availed modvat credit on duty paid inputs, they are required to reverse the duty on average basis. The adjudicating authority in his Order-in-Original dated 01.11.2004 held that the assessable value of the disputed goods as evidenced by the central excise invoice 21/23.9.1994 supported by CA certificate is Rs. 15 per kg. as assessable value as per Section 4(1)(a) of the Central Excise Act, 1944. Thus applying the rate of Rs. 15 per kg. duty in respect of ail show-cause notices for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Section 4(1)(a) of the Central Excise Act, He submits that the review of the original order was made only on the basis of the Tribunal's order in the appellant's own case reported as CCE vs, Garware Polyester Ltd. 2004 (164) ELT 344. He submits that in the said order of the Tribunal, the issue decided was the classification of the waste x-ray films and not the valuation, Therefore, there is no bearing of the said Tribunal's order as in the present case the only issue is valuation. Therefore, the entire basis of review is irrelevant. For this reason itself the Commissioner (Appeals) ought to have dismissed the revenue's appeal. In support he placed reliance on the following decisions:- * Elson Machines P. Ltd. 1988 (38) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute the demand of excise duty calculated by the original authority taking price of Rs. 15 per kg. but the demand over and above the said amount will not sustain for the reason that the original order as well as the review order is beyond the scope of show-cause notice. Moreover in regard to these three show-cause notices the demand of cenvat credit attributable to the waste x-ray films is also not sustainable for the reason that at the material time in terms of Rule 57D of Central Excise Rules, 1944, cenvat credit cannot be denied in case the input is contained in waste, by-product, refuse etc., for these reason also demand in these three show-cause notices are not sustainable. As regards the show-cause notice dated 04.04.1995 and 01.01. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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